2005/01/26 - Pl. ÚS 73/04: Election Publication

26 January 2005

Appeal under Art. 87 par. 1 let. e) of the Constitution, filed by the Civic Democratic Party

 HEADNOTES

 

As

regards the content of an election campaign, arguments are often

presented to voters in a very emotional and heightened form, and are

intended to influence their electoral behavior and their decision whom

to vote for. However, the purpose of an election campaign in a

pluralistic democracy is undoubtedly also to evaluate the most

controversial issues in the programs of political parties and candidates

generally, as well as their personal qualities and capability to hold

elected public office. Only in that case will voters be able to make

informed decisions, and only thus can the fundamental constitutional

principle that the people are the source of all state power be

fulfilled. Insofar as the Election Act speaks of the requirement for

honorable and honest conduct of an election campaign, it means what was

previously called the cleanness of elections (cf. § 56 par. 1 of Act no.

75/1919 Coll., The Election Code in Municipalities of the Czechoslovak

Republic). However, these concepts can not be interpreted in terms of

private law and general morality, because they are being applied in the

context of an election campaign, which is nothing more than a fight for

voters’ votes. Its negative effects can be regulated, but can not be

ruled out by law. The lacking effective protection in the Election Act

for the conduct of elections will always lead to an effort to resolve

such disputes through election complains. However, the protection of

personhood rights in these proceedings can only play a supporting role

in terms of guaranteeing and observing the rules for the proper conduct

of an election campaign.

 

The essence of proceedings before the Constitutional Court under

Art. 87 par. 1, let. e) of the Constitution lies in guaranteeing

protection for the fundamental provisions of the constitutional order,

which give rise to the principle that the people are the source of all

state power, and in this role, among other things, they share in

establishing the state through free and democratic elections. The

statutory framework for the election judiciary and verification of

elections corresponds to this. In terms of the procedural regulation of

the election judiciary and conduct of such proceedings, this gives rise

to the rebuttable presumption that election results correspond to the

will of the voters. Presenting evidence to rebut this presumption is the

obligation of the person who claims that there was error in elections.

Our election judiciary does not recognize absolute defects in election

proceedings (so-called absolute confusion of election proceedings), i.e.

such violation of a constitutional election regulation which would

result in automatic annulment of elections, the election of a candidate,

or voting. In this sense, all possible defects and doubts must be

considered relative, and their significance must be measured by their

effect on the results of elections to a representative body as such, or

on the result of the election of a particular candidate, or on the

result of voting, according to the proportionality principle.

Proceedings are thus based on the constitutional principle of protection

of a decision which resulted from the will of the majority manifested

in free voting and taking into consideration the rights of the minority

(Art. 6 of the Constitution), as the Constitutional Court has already

said in another context, in judgment file no. Pl. ÚS 5/02 (in the

Constitutional Court of the Czech Republic: Collection of Decisions.

Volume no. 28. judgment no. 117. p. 25.- no. 476/2002 Coll.). The

framework for verifying elections is alternatively based on the

prerequisite of an objective causal connection between an election

defect and the composition of a representative body, or at least a

possible causal connection (the principle of potential causality in the

election judiciary). However, this possible causation, as established in

§ 87 of the Election Act, must not be interpreted as a mere abstract

possibility. We can derive from Art. 21 par. 4 of the Charter the right

of an elected candidate to uninterrupted exercise of his office during

the specified period [cf. Constitutional Court judgment Pl. ÚS 30/95 (in

the Constitutional Court of the Czech Republic: Collection of

Decisions. Volume no. 5. judgment no. 3. p.17 – 31/1996 Coll.), which

emphasized the right of candidates, if elected, to exercise these

offices without obstacles]. From this we must conclude that the judicial

branch can change the decision of the voters, as a sovereign, only in

exceptional cases, where defects in the election process caused or could

demonstrable cause that the voters would have decided differently and a

different candidate would have been elected. However, the essential

thing is that annulment of elections can not be taken as a punishment

for violating election regulations, but as a means to ensure the

legitimacy of an elected body. it is the probability of influence of an

election defect of election offense (§ 177 Criminal Code, § 16 par. 5

and 7 of the Election Act) on the election result in particular

elections with particular voters that is decisive. A mere abstract

possible causal connection is not sufficient. In such a case the threat

of annulling the result of elections as the only possible consequence is

inconsistent with the constitutional principle of proportionality of

interference by public authorities. This certainly does not rule out

disqualifying a candidate who committed a serious election offense (e.g.

fraud, bribery). In this regard the Constitutional Court is forced to

say that, compared to other countries, the legal regulation of defects

in the election process, election offenses, and the rules for conducting

an election campaign in general, is, for one thing, very fragmentary,

and for another, basically rooted in conditions which correspond to

“elections” from the times of the previous regime. Therefore, the

legislature will have to weigh whether the election culture of voters,

candidates and public officials is on such a level that regulation of

these issues is unnecessary, or whether it will guide electoral behavior

through pre-set rules that will create a situation of legal certainty

for the subjects of the election process and which will be at least a

prerequisite for electoral economy.

 

The Constitutional Court concluded that neither an objective nor

potential causal connection was proved between the content of the cited

publications and their distribution among voters and the election of J.

N. We must emphasize that the Supreme Administrative Court only

considered the question of whether Ing. Z. could advance to the 2nd

round of Senate elections. However, in terms of the abovementioned

presumption that election results are valid, it was not proved that the

elements of the fundamental substantive law of our election judiciary

were present, i.e. whether under § 87 par. 4 of the Election Act the

provisions of the Act were violated in a manner which could influence

election results. Therefore, the data provided do not lead to any

logically or statistically documentable conclusion that, applying the

principle of an absolute majority, there was a high degree of

probability that anything would have change in the election results of

the 2nd round and that J. N. would not have been elected senator.

Therefore, the presumption that the voters’ decision in an election is

valid was not cast in doubt.

 

There is no dispute that the printed materials published as

municipalities reporters, because they are in the hands of the public

authorities, must remain correct and neutral. Elections can be annulled

only as a result of fundamental and substantial violation of state

neutrality in the course of elections. However, the adjudicated matter

does not involve such a case.

 

  


 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 

 

The

Plenum of the Constitutional Court, composed of justices JUDr. PhDr.

Stanislav Balík, JUDr. František Duchoň, JUDr. Vojen Güttler, JUDr.

Pavel Holländer, JUDr. Ivana Janů, JUDr. Dagmar Lastovecká, JUDr. Jiří

Mucha, JUDr. Jan Musil, JUDr. Jiří Nykodým, JUDr. Pavel Rychetský, JUDr.

Miloslav Výborný, JUDr. Eliška Wagnerová a JUDr. Michaela Židlická,

decided on an appeal under Art. 87 par. 1 let. e) of the Constitution,

filed by the Civic Democratic Party, represented by prof. JUDr. A. G.,

CSc., attorney, with the participation of 1) the Senate and 2) the

Supreme Administrative Court, as parties to the proceedings, and J. N.,

represented by prof. JUDr. A. G., CSc., attorney, as a secondary party

to the proceedings, as follows:

 

J.

N. was validly elected a senator in elections to the Senate held on 5

and 6 November 2004, and on 12 and 13 November 2004, in election

district no. 19, Prague 11.  

 

 

 

REASONING

 

I.

 

Proceedings before the Supreme Administrative Court

 

By

resolution of 3 December 2004, file no. Vol 10/2004-24, the Supreme

Administrative Court decided on a petition from Ing. A. Z., that the

elections to the Senate, held in election district no. 19, Prague 11, on

5 and 6 November 2004, and on 12 and 13 November 2004, are invalid. It

also decided that none of the parties to the proceedings are entitled to

recovery of their costs.

 

In

proceedings before the Supreme Administrative Court the petitioner Ing.

A. Z. claimed that the election campaign in election district no. 19

was not conducted honorably and honestly because untrue information was

repeatedly published about him in the local press. Thus, M.C., the mayor

of the City District (“CD”) Prague 22 Uhříněves, stated in the

Uhříněves Reporter no. 10/2004, published by the CD, in a print run of

3,000 copies and distributed to approximately 3,000 households, among

other things, that the characteristic of “consciously lying is not

foreign to the petitioner.” In addition, he referred to page 8 of the

same publication where, without any other commentary whatsoever, he

published the full-page text of an anonymous letter from 2001, addressed

to the then Chairman of the KDU-ČSL party, JUDr. C. S. The letter is

alleged to contain a number of incorrect pieces of information, which

blackened the name of the petitioner. Specifically, he was accused of

committing fraud with subsequent illegal enrichment by conducting a

sophisticated multiple exchange of a state-owned apartment, and that he

may have committed the same fraud on the order of millions of crowns by

transferring to the civic association OPTIM-EKO, and thereby de facto to

himself, parcels of land in the registration area Prague-Šeberov, that

he took part under unusual circumstances in the removal of the

unfinished “Křeslice sewerage system,” and that he took part in

“squandering millions.” The anonymous letter incorrectly stated that in

1998 he ran for the position of “deputy to the Senate,” and that he

deceived voters by deceptive information on the candidate list. The

conclusion of the letter states that the writers are primarily concerned

that the petitioner not succeed in obtaining parliamentary immunity and

thus escape investigation. The authors of the letter are said to be

members of the representative body of the CD Prague-Petrovice. However,

the author of the article made no attempt to determine the veracity of

the letter, although the then mayor of the CD Prague-Petrovice, Mgr. M.

L., confirmed by letter of 14 October 2001 that the anonymous letter had

not been written by members of the representative body.

 

According

to the petitioner, another untrue article was published in the

Petrovice Reporter, published by the CD Prague-Petrovice, which

published a special issue on 3 November 2004, in a print run of 50,000

copies, although the normal print run is 2,700 copies. On pages 8-10 it

carried an interview by one of the editors and member of the Council of

CD Prague-Petrovice, Ing. P. Ř. with JUDr. M. Č. in his opinion, this

interview was intended to quite self-servingly and incorrectly create

the impression that in his Senate election campaign he threatened the

residents with building a road on the JVK route (the short version of

the south-east by-pass highway). Specifically, he cited a sentence from

the answers of Dr. Červinka, who said about him, “Mr. Zápotocký incites

fears among the residents of south-eastern Prague, in order to make tens

of millions of crowns out of their fears about the health of their

children. Today the JVK project would benefit only him.” The petitioner

stated that from the beginning he has been fighting against building of

the JVK road, so that, on the contrary, from the beginning he has

rejected any possible profit connected with its construction. The

petitioner also stated that in concluding the interview the editor, Ing.

P. Ř., gave a summary in which he said: “Your words, which completely

remove the halo from Mr. Z.’s head, will probably hurt many people,

people who have believed in him until now and constantly emphasized that

he was fighting selflessly against the highway for the good of us all.

Unfortunately, in researching information about the highway we have

found similar information about … human nature in other places as well.

This is disillusionment for me too. I did not think that the JVK problem

and people’s fears cold be used to make one’s own election program,

while looking after one’s own money, and in addition Artificially keep

this problem alive so that it would last for, ideally, several election

terms. The disappointment is all the greater for me because I was (until

today) a member of the civic association OPTIM-EKO, which Ing. Z.

created and which he leads. There once really was a danger of a road

being built in immediate proximity to our homes, and so, like other

members and supporters, I believed that I was spending money, time and

energy only for a good thing, and not for someone’s personal benefit.

Let us wish that in the everything will go well for the residents of

south-eastern Prague.” The petitioner deduces from that conclusion that

Ing. Ř., on behalf of the Petrovice Reporter and the Petrovice town

hall, agreed with the statements of JUDr. Č., joined in them, and thus

gave his statements considerable gravity and importance.

 

In

proceedings before the Supreme Administrative Court the petitioner

maintained that these publications violated Act no. 247/1995 Coll., on

Elections to Parliament, as amended by later regulations (the “Election

Act”), which in § 16 par. 2 requires that an election campaign be

conducted honorably and honestly. He stated that he failed to advance to

the second round of Senate elections by a mere 325 votes. He was in 3rd

place with 13.07% of votes cast, while the second advancing candidate,

Ing. P. J., received 14.33% of votes cast. There were 102,236 voters

registered in voting district no. 19, and if the special issue of the

Petrovice Reporter were delivered to 50,000 households, and in each of

them there was at least one registered voter, in his opinion it is

highly probably that it influenced voters who had originally intended to

vote for the petitioner in their decision not to vote at all, or in

their choice of candidates. If that happened, then a mere 1% of voters

thus influenced would be at least 500 people. On the basis of that

calculation he then reached the above-mentioned conclusion.

 

The

Supreme Administrative Court requested a statement from the State

Election Commission, which referred to its statement in response to the

filing by Ing. Zápotocký, in which it emphasized the text of § 16 of the

Election Act, including issues of honorable and honest conduct of an

election campaign. In the State Election Commission’s opinion this

regulation must be understood as a kind of moral appeal to individual

candidates, and the Act on Elections to Parliament does not provide any

particular penalty for violating it. The State Election Commission also

instructed the petitioner on the options for seeking remedy under civil

law or criminal law, and, in terms of the conduct of elections and their

results, through the administrative judiciary, by a petition under § 87

of the Election Act.

 

The

Supreme Administrative Court admitted as evidence the Uhříněves

Reporter no. 10/2004 and the special issue of the Petrovice Reporter of

21 October 2004. It determined that the Uhříněves Reporter is published

by the Office of CD Prague 22, and that it is registered by the

department of mass media in the Ministry of Culture. The author is

responsible for correct substantive content. As regards the Petrovice

Reporter, the court determined that it is issued 5 times a year and is

registered by the Ministry of Culture. Its publisher is the CD

Prague-Petrovice, and the editor is Ing. P. Ř. The deadline for the

special issue of October 2004 was 15 October 2004; it was sent to print

on 22 October 2004, and came out on 3 November 2004 in a print run of

50,000 copies.

 

The

Supreme Administrative Court also admitted as evidence a letter from

the mayor of CD Prague-Petrovice, Mgr. M. L., dated 1 October 2001, file

no. 245/2001/Star, in which she informs the then-Chairman of KDU ČSL,

that she spoke with members of the representative body by telephone

about the material (the anonymous proposal to KDU-ČSL to remove the

petitioner), and based on that is fully authorized to state that members

of the representative body of CDPrague-Petrovice are not the authors of

the material. She announced the same statement to the daily Blesk,

which was interested in the anonymous letter.

 

The

Supreme Administrative Court verified from the permanent voter list of

CD Prague-Křeslice that A. Z. is registered in the list under number

318, with the comment that he is permitted to vote. It also admitted as

evidence a copy of the record of results of elections to the Senate in

election district no. 19, Prague 11, held on 5 and 6 November 2004,

according to which, in the first round, out of a total of 25,726 valid

votes cast for all candidates, in first place, J. N. received 10,201

votes, or 39.65%, in second, P. J. received 3,689 votes, or 14.33%, and

in third place, A. Z. received 3,364 votes, or 13.07 %. The other

candidates received lower numbers of votes. Therefore, J. N. and P. J.

advanced to the second round of elections.

 

The

Supreme Administrative Court granted the petition to annul the

elections. It relied on its case law (see Collection of Decisions of the

Supreme Administrative Court no. 10, year 2004, R 354), which, in order

to grant a petition, requires 1) unlawfulness, i.e. violation of

provisions of the Election Act; 2) a relationship between this

unlawfulness and the election of the candidate whose election is

contested by the election complaint, and 3) a fundamental intensity of

that unlawfulness, the consequences of which must at least considerably

cast doubt on the election of the candidate in question. It concluded

that § 16 of the Election Act does not exhaustively regulate election

campaigns, but applies only to their last, or “hot” phase. An election

campaign is one of the forms of exercising fundamental rights, such as,

primarily, freedom of speech, the right to information, freedom of

association, freedom of assembly, etc. The provision of § 16 of the

Election Act makes concrete these fundamental rights and constitutional

principles, above all the principle of free competition of political

forces in a democratic society and the principle of equal need of the

right to vote. Although § 16 par. 1 of the Election Act mentions only

use of surfaces for posting election posters, in the Supreme

Administrative Court’s opinion it is clear, without any substantial

doubts, in view of the cited constitutional principles, that this is

only an example of a generally valid approach to the means of

communication which a municipality has at its disposal. It follows that

the principle of equality of candidates must be observed in the use of

all means of communication owned by the municipality. In the instant

matter however, the Supreme Court believes that this principle was not

observed It was violated by publication of the Uhříněves Reporter no.

10/2004 and the special issue of the Petrovice Reporter directly before

the first round of the Senate elections. In the Supreme Court’s opinion

the nature of the information published in these publications was such

that it was capable of significantly harming the petitioner, Ing. A. Z.,

in the eyes of potential voters. The particular circumstances of the

case, the publication of the reporters just before the elections, the

clear one-sidedness of the opinions presented, the manner of

distribution, the significantly higher print run of the special issue of

the Petrovice Reporter, etc., persuasively show that this was the

intent of the publisher of these periodicals.

 

The

Supreme Administrative Court also concludes that the nature of the

information published in these reporters does not meet the requirements

for fairness in an election campaign formulated in § 16 par. 2 of the

Election Act, whereby it has in mind specifically the printing of the

anonymous letter from 2001, especially as it was presented without any

commentary whatsoever as a letter from members of the representative

body of CD Prague-Petrovice, although the authorship of these members

was not verified. The Supreme Administrative Court also concluded that

there was a relationship between the violation of the Election Act and

the election of J. N. It relied on Constitutional Court judgment file

no. I. ÚS 526/98, which indicates that in evaluating violation of the

Election Act the point is not whether there was violation objectively or

subjectively, but each case must be evaluated materially, in view of

all the particular circumstances. Therefore it is not decisive whether

the elected candidate took part in the violation of the Election Act in

any way, whether directly or indirectly. What is important is that in

the instant case the petitioner ended in third place in the Senate

elections, by a margin of 325 votes behind the candidate who was in

second place. In the Supreme Administrative Court’s opinion, the narrow

margin of votes, because of which the petitioner did not advance to the

second round, could in fact have been caused by circumstances which the

Supreme Administrative Court sees as violating the Election Act. If this

unlawfulness had not occurred, the petitioner could realistically have

advanced to the second round of elections, in which the possibility that

he might have been elected could not be ruled out; therefore, a

“certain relationship” exists between the violation of the Election Act

and the election of the candidate.

 

Finally,

the Supreme Administrative Court considered the issue of evaluating the

intensity of the unlawfulness. It said that in a situation where the

petitioner did not advance to the second round of Senate elections

because of a relatively narrow margin of votes, the intensity of

unlawfulness necessary for declaring the elections invalid is naturally

lower than in a case with a large margin of votes.

 

 

 

II.

 

The Content of the Appeal

 

On

13 December 2004 the Constitutional Court received a filing from the

Civic Democratic Party (the “petitioner”), titled “Appeal in the matter

of confirming the election of a senator under Art. 87 par. 1 let. e) of

the Constitution and § 85 et seq. of Act no. 182/1993 Coll., on the

Constitutional Court, as amended by later regulations.” This filing was

then supplemented by a filing delivered on 20 December 2004, titled

“Supplement to Appeal with New Facts.” In it the petitioner says that on

14 December 2004 the Senate Mandate and Immunity Committee passed a

resolution which said in point II. that it could not confirm the mandate

for election district no. 19, Prague 11, in view of the fact that the

Supreme Administrative Court decided by resolution file no. Vol

10/2004-24 that the elections in this district are invalid.

 

In

the appeal the petitioner cast doubt on all the bases which the Supreme

Administrative Court used for its decision. As regards unlawfulness,

the petitioner especially objects to the expansive interpretation of §

16 par. 1 of the Election Act as it was understood by the Supreme

Administrative Court. In § 16 par. 1 the Election Act mentions only

surfaces for posting election posters. It is not clear from the text of

the Act that this only serves as an example. Therefore, the conclusion

that this provision applies to any means of communication that are at

the municipality’s disposal has no support in the statutory text. The

cited provision must be interpreted in light of the principle enshrined

in Art. 2 par. 4 of the Constitution and Art. 2 par. 2 (this should be

Art. 2 par. 3) of the ChArter of Fundamental Rights and Freedoms (the

“ChArter”), i.e. that everyone may do that which is not prohibited by

law; and nobody may be compelled to do that which is not imposed upon

him by law, and the principle enshrined in Art. 2 par. 3 of the

Constitution of the Czech Republic (the “Constitution”), and Art. 2 par.

4 of the ChArter (should be Art. 2 par. 2 of the ChArter), i.e. that

State authority may be asserted only in cases and within the bounds

provided for by law and only in the manner prescribed by law. Therefore,

in the petitioner’s opinion, the cited provision can not be interpreted

in such a way that it would also affect periodicals published by

municipalities.

 

The

petitioner also disagrees with the Supreme Administrative Court’s

conclusion that there was violation of § 16 par. 2 of the Election Act,

under which an election campaign must be conducted honorably and

honestly, in particular, untrue information about election subjects may

not be made public. In the petitioner’s opinion, the criterion of honor

and honesty is subjective to a certain degree, and therefore it must be

evaluated in relation to the subject. It disagrees with the Supreme

Administrative Court’s conclusion that it is not decisive whether the

elected candidate took part (even if indirectly) in the violation of the

Election Act. In the petitioner’s opinion, a completely opposite

conclusion follows from the cited Constitutional Court judgment, file

no. I. 526/98. However, it considers it fundamental that § 16 par. 2 of

the Election Act indicates that only providing untrue information about

candidates and political parties can be considered dishonorable and

dishonest conduct. If the truthfulness of untruthfulness of the

information was not proved in the proceedings, the court could not reach

a conclusion about whether the hypothesis of the legal norm contained

in § 16 par. 2 of the Election Act had been met. The petitioner also,

with reference to the Constitutional Court judgment, emphasizes freedom

of expression and the right to information, guaranteed in Art. 17 of the

Charter of Fundamental Rights and Freedoms. It pointed out that the

Election Act was amended and the ban on campaigning in the last 48 hours

before elections contained in § 16 par. 5 was annulled, which further

liberalized the election contest in favor of freedom of expression. In

the petitioner’s opinion the otherwise vague and unclear § 16 par. 2 of

the Election Act must be interpreted considerably restrictively. A

different interpretation would violate freedom of expression and the

right to information, violation of a candidate’s subjective right to be

elected, and the right of the voters to be represented in a

representative body by a candidate elected by them.

 

From

a comparative viewpoint the petitioner pointed to the issue of

violating election regulations in the Ukrainian presidential elections

in November 2004 and to the decision of the German Constitutional Court

(BVerfGE, vol. 103, p. 111n. of 8 February 2001), in which that court

considered the consistency of Art. 78 par. 2 of the Constitution of

Hesse with the Basic Law of Germany, and in that context gave a

restrictive interpretation of the concept “acting in violation of good

morals” that influences election results.

 

The

petitioner also objects that the Supreme Administrative Court’s

decision is quite non-reviewable in the part where it evaluates the

relationship between the unlawfulness the petitioner claims and the

election of J. N. In the petitioner’s opinion the conduct and election

results in election district no. 19 lead to the conclusion that it is

impossible for a relationship to exist between the claimed violation of

the Election Act and the election results. The Supreme Administrative

Court thus begins with an unsubstantiated belief that a narrow margin of

votes could really have been caused by the cited unlawfulness, but does

not argue whether it really was caused. The petitioner concludes that

the election campaign must be understood as the period of 16 days before

election day, not, for example, the entire term of office or the year

before the elections. Yet the problem at issue has been discussed for

several years, in a very sharp tone, and that includes the disputed

materials. Therefore the likelihood that they had an effect on voters’

behavior and opinions is negligible. Likewise, a different conclusion

can not be drawn from the election results, whether by comparing the

results of the 1st and 2nd rounds of elections in district no. 19, or by

comparing the results of KDU-ČSL in other senate districts in Prague,

just as in the municipal elections in 2002. In this regard, in addition

to legal arguments, the petitioner also argues factually, and questions

the importance of the texts in the reporters. In particular, it

emphasizes that both periodicals, whose content J. N. could not

influence in any way, are a reaction to the first edition of the first

issue of the South-eastern Prague Courier, published by CD Prague

Křeslice, where Ing. A. Z. is mayor. This first issue was published on

29 September 2004 in a print run of 50,000 copies, and the very first

page has an article with the title “What Are Mayors C., N. and Š. Not

Saying?” The articles published in the Uhříněves Reporter and the

Petrovice Reporter are only a reaction to this and other information

which Ing. A. Z. provides. The petitioner suggests as evidence

questioning the mayors of CD Uhříněves and CD Petrovice. It also says

that the October issue of the Petrovice Reporter is not directly related

to the elections. The declaration by the mayors only explains certain

facts, and the petitioner emphasizes that Ing. Z. himself, in one of his

flyers, dated 2 October 2004 (although according to the petitioner that

should be 2 November 2004), entitled “The Rudeness of Attacks Against

Me Increases,” says that he would like to join the mayors’ declarations.

Yet it is evident that this is a subjective opinion of the mayors, not

objective information. The high print run was agreed on by all the

mayors, and the 50,000 copies correspond to the number of households in

the municipalities (apparently should be CDs) whose mayors signed the

declaration. As regards the material on pp. 8-10 of the Petrovice

Reporter the petitioner proposed evidence which would prove the veracity

of the claim in the interview by Ing. P. Ř. with JUDr. M. Č. The

petitioner also pointed out that it was Ing. Z. who, in the second issue

of the South-eastern Prague Courier (also a print run of 50,000 copies)

clearly calls on the citizens to cast their votes for him. Thus, if

there was violation of the law, it was on both sides, and under the

principle nemo turpitudinem suam allegare potest (no one can base

objections on his own dishonesty) the elections should not have been

found invalid.

 

The

petitioner also casts doubt on the criterion of intensity of

unlawfulness which the Supreme Administrative Court used to justify its

decision because it concluded that the intensity of unlawfulness

necessary to find elections invalid is naturally lower when the election

result is close than in the case of a wide margin of votes. In the

petitioner’s opinion this criterion does not provide a firm scale and

especially does not at all arise from the law. In addition, the

petitioner says that the Supreme Administrative Court acted

inconsistently with this criterion, which it chose itself, when it

defined it in such a way that the intensity of unlawfulness must be

related to the candidate who was elected, yet the court itself related

it to Ing. A. Z., i.e. the candidate who was not elected.

 

The

petitioner also criticizes the Supreme Administrative Court on the

grounds that it did not permit J. N. to participate in the proceedings.

It sent the petition to declare the elections invalid and the call for a

response to the address of the Senate. Thus, it happened that J. N. did

not receive the petition to declare elections invalid until 7 December

2004, i.e., after the court had already decided in the matter. Thus, he

did not have an opportunity to state his position on the matter. In

connection with this circumstance, the petitioner, in the supplement to

the appeal, points to the completely different procedure followed by the

Supreme Administrative Court in the proceedings which are contested by

the appeal and in the proceedings where the court decided on a petition

from the Communist Party of the Czech Lands and Moravia (“KSČM”) to

declare invalid elections held on 12 and 13 November in election

district no. 31 (Ústí nad Labem). The petitioner sees the main

inconsistency in the fact that in that case the Supreme Administrative

Court conducted extensive presentation of evidence, whereas in the case

of J. N. it did not even give him an opportunity to respond to the

petition to declare the election invalid.

 

 

 

III.

 

Proceedings Before the Constitutional Court

 

The

Constitutional Court requested statements from the parties and the

secondary part to the proceedings, which are defined for this type of

proceedings in the special provision § 88 of Act no. 182/1993 Coll., on

the Constitutional Court (the “Act on the Constitutional Court”).

 

The

Chairman of the Senate, MUDr. P.S., provided a statement on its behalf.

In the statement he briefly recapitulates the situation and the content

of the appeal, which is directed against Supreme Administrative Court

decision of 3 December 2004, which ruled that “elections to the Senate

of the Parliament of the Czech Republic, held in election district no.

19 on 5 and 6 November 2004 and on 12 a 13 November 2004, are invalid.”

He describes the course of proceedings to confirm the disputed elections

to the Senate. He stated that at the opening meeting in the fifth term,

under the point “report of the Mandate and Immunity Committee on

results of reviewing whether individual senators were validly elected,”

the Senate took cognizance of 54 votes of all the senators present from

the Mandate and Immunity Committee no. 11, of 14 December 2004, on this

issue. It thereby fully respected the Supreme Administrative Court’s

decision.

 

A

statement was provided on behalf of the Supreme Administrative Court by

its panel chairwoman JUDr. D. N. As regards the procedural aspect, she

stated that the petition was filed prematurely, and therefore should

have been denied under § 43 par. 1 let. e) of the Act on the

Constitutional Court as impermissible. In her opinion this flaw was not

removed by the supplemental filing of 20 December 2004, because this is

not an expansion of the grounds in the original petition, but a

completely new petition, which must be decided independently. However,

it is in the competence of the Constitutional Court to decide how to

proceed on that point. This was also evident in her closing proposal,

where she no longer insists on denying the petition.

 

The

chairwoman also clarified the reasons for delivering the petition to

declare elections invalid to the elected senator J. N. at the address of

the Senate. She stated that the Supreme Administrative Court did this

because of its previous experience with delivering documents in similar

matters, where this method had proved effective. The court was aware

from its official activities that elected senators have an office in the

Senate buildings as of the day election results are announced. At the

hearing the Supreme Administrative Court emphasized that the mandate of a

senator is acquired by election, and thus it is difficult to imagine

that the elected senator would begin to exercise his office

substantially later. In any case, however, this fact by itself can not

be grounds for granting the appeal, in view of the appellate nature of

proceedings before the Constitutional Court.

 

The

Supreme Administrative Court does not agree with the petitioner’s claim

that it unlawfully concluded that § 16 par. 1 of the Election Act

applies not only to election posters but also to other means of

communication held by a municipality. This is a constitutional

interpretation based on the principle of political plurality enshrined

in Art. 21 par. 4 a Art. 22 of the Charter, and respecting the

hierarchical organization and internal harmony of the legal order, under

which a statute only makes constitutional principles more specific.

Thus, it called the interpretation of this statutory provision, as

submitted by the petitioner, absurd and unconstitutional.

 

In

its statement, which it supplemented by a presentation in the hearing,

the court places primary emphasis on the neutrality of the state in

elections, although in the reasoning of its decision it did not discuss

this issue at all. The court considers a key point to be that this

concerns public means financed by public funds, and one must insist that

they provide objective reporting and give all candidates an opportunity

to state their positions. Otherwise, there would be violation of the

constitutional principle of the political neutrality of the state (Art. 2

par. 1 of the Charter). As regards § 16 par. 2 of the Election Act, the

court considers the petitioner’s interpretation to be an indirect

denial of the election court’s right to evaluate the correctness of the

elections, which is also inconsistent with Art. 3.3 let. d) of the Codex

of Good Election Practices, passed by the Venice Commission of the

Council of Europe. It considers improper the view that applying this

provision as grounds for declaring elections invalid may endanger the

principle of free competition of political forces. On the contrary, it

considers the decision of the German Constitutional Court (see above)

cited by the petitioner, as well as other German case law in this

matter, to be a confirmation of the legal bases on which its decision is

based. The German Constitutional Court, in its decision, with reference

to previous German case law in this matter, declared it constitutional

for an election court to have the authority to declare elections invalid

on the grounds of “errors in the election process and in criminal

conduct or conduct damaging to good customs (morals) which influence the

election result.” German case law also indicates that the process of

forming the will of the people must take place independently of the

state, and the principle of free elections and the right of political

parties to equal opportunity gives rise to a ban on the public work of

the government influencing an election campaign. Otherwise, the validity

of elections is endangered.

 

As

regards the objection that the contested decision is non-reviewable,

JUDr. N. stated that in Senate elections it is necessary to evaluate

both rounds of elections independently. The Election Act distinguishes

between a petition to declare elections invalid and a petition to

declare the election of a candidate invalid. In the instant case it was

primarily the invalidity of the first round of elections and its

possible effect on the results of the second round that was evaluated.

Thus, the invalidity of elections was evaluated not in relation to the

elected candidate, but in relation to violation of the election process

in a manner which could influence the overall results of the elections.

The possible violation of the Election Act by Ing. A. Z. in his election

campaign can have no effect at all on the matter.

 

Finally,

in the conclusion, JUDr. N. deals with the objection of a different

procedure in this matter compared with the procedure in the matter of

the petition by the KSČM to declare invalid elections in election

district no. 31 in Ústí nad Labem. Those proceedings reviewed the

claimed violation of election regulations in the actual act of voting,

which could not be verified otherwise than by hearing the persons

present at that act. Therefore, in such a case it was appropriate to

abandon the principle of not ordering a hearing under § 90 par. 3 of the

Administrative Procedure Code. In conclusion, JUDr. N. proposed that

the Constitutional Court deny the appeal.

 

The

secondary party, J. N. also submitted a statement on the matter,

through his attorney. He agreed with the petitioner’s proposal and

emphasized that he did not take part in publication of the materials

(the Uhříněves Reporter and the Petrovice Reporter) which, in the

Supreme Administrative Court’s opinion, could have had an influence on

the result of the elections. He relied on the opinion, expressed in

Constitutional Court judgment file no. I. ÚS 526/98, that it is

impossible not to take into account the degree of violation of the

Election Act by a candidate whose election was declared invalid.

 

Ing.

A. Z. also responded to the appeal, on his own as well as through his

attorney. In view of the fact that the circle of parties to these

special proceedings is exhaustively defined in the Act on the

Constitutional Court (see point V.), he could not be treated as a party

to the proceedings.

 

 

 

IV.

 

Presentation of Evidence Before the Constitutional Court

 

The

Constitutional Court admitted as evidence the file of the Supreme

Administrative Court, file no. Vol 10/2004, which includes documentary

evidence referred to in that court’s decision of 3 December 2004, file

no. Vol 10/2004-24. From the documentary evidence presented in

proceedings before the Supreme Administrative Court, it then introduced,

beyond the framework of findings listed under point I. of this

judgment, the content of an undated flyer entitled “Antonín Zápotocký: I

must defend myself against insults!” in which Ing. Z. responded to the

articles in the October issue of the Uhříněves Reporter, and the content

of a flyer of 2 October 2004 entitled “Antonín Zápotocký: The Rudeness

of Attacks Against Me Increases!” in which Ing. Z. responded to the

articles in the special issue of the Petrovice Reporter.

 

The

Constitutional Court determined from the resolution of the Mandate and

Immunity Committee of the Senate, from its eleventh meeting, of 14

December 2004, that the mandate for the election district no. 19 Prague,

11, had not been confirmed, in view of the fact that the Supreme

Administrative Court ruled in its decision file no. Vol 10/2004-24 that

the elections in that district were invalid. Senator J. H. gave a report

about that resolution at the first meeting of the Senate in its 5th

term, held on 15 December 2004, and by Senate resolution it took

cognizance of the report of the Mandate and Immunity Committee on the

results of confirming the validity of election of senators. It was

determined from a transcript of the 1st meeting of the 5th term of the

Senate, held on 15 December 2004, that all 54 senators present voted in

favor of the resolution.

 

The

Constitutional Court determined from the envelopes submitted by the

petitioner and from delivery receipts found in the Supreme

Administrative Court file that the call from the Supreme Administrative

Court for a response to the petition to declare invalid the Senate

elections held in election district no. 19 on 5 and 6 November 2004, and

on 12 and 13 November 2004 (Art. 10 NSS), was delivered to J. N. by

registered mail to him personally, at the address “The Senate of the

Parliament, personally to Mr. J. N.” This letter was received by an

employee of the Office of the Senate, Ms. Svobodová, on 23 November

2004. The decision of the Supreme Administrative Court of 3 December

2004, file no. Vol 10/2004-24, was delivered to J. N. by registered mail

to the address “J. N., The Senate of the Parliament, Valdštejnské nám.

7/4, 118 01 Prague 1.” Because the addressee was not present to receive

it, the letter was held as of 6 December 2004, and J. N. picked it up on

9 December 2004.

 

It

was determined from issue 1 year 1 of September 2004 and issue 2 year 1

of November 2004 of the periodical entitled South-eastern Prague

Courier that they were published by the City District Prague-Křeslice,

both in a print run of 50,000 copies. Three out of four pages of the

periodicals contain various articles about the south-east ring road

around Prague. In issue 1 these are a leader by Ing. J. Z. and an

article by him, “Attention, the Ring Road Project continues,” an article

“What Aren’t the Mayors C., N. and Š. Saying?” signed “members of the

representative body of City District, Prague-Křeslice,” an article “How

the leadership of Prague City Hall keeps the Prague mayors obedient,”

signed “-am-,” an article “How the Prague Representative Body Discussed

the Intersection” signed “v.k.,” an article “What We Will Sacrifice for

Hypermarkets in Šeberov,” signed J. P., and an article “Store Chains

versus Citizens,” signed “a Petrovice resident.” In issue 2 these are a

leader by Ing. A. Z., unsigned articles “A Study of the Development of

South-eastern Prague,” “Information on the South-east Ring Road Route”

and “B Makes Promises He Won’t Fulfill!” an article “Ing. A. Z.: ‘If I

Become a Senator, My Voice for Saving South-east Prague Will Be Heard

Much More,” signed “A. M.,” an article “Senators Must Not Be Afraid,”

signed “P. P.,” and an article “Will the Botič and Pitkovice Stream

Valleys Remain Open to the Public?” signed “Members of the

Representative Body of CD Prague-Křeslice: Ing. F. P., CSc., V. K., K.

Š., M. K., T. P., H. M.,” which discusses, among other things, the

purchase of land parcels by JUDr. Č. that are owned by the state and on

which the City District Prague-Křeslice is said to plan planting a

forest. The introduction to that issue also reports that the editorial

staff had been informed that issue1 had not reached all readers. The

bottom half of page one also contains the information that the

Representative Body of City District Prague-Křeslice approved the

publication of the South-east Prague Courier on the condition that the

expenses will be covered by donations or advertising, and that during

the course of the summer the necessary fund were gathered from a

sponsor’s targeted gift.

 

It

was determined from a document tiled “Record of a meeting of mayors

held on 19 October 2004” that the meeting was organized by the mayor of

City District Prague-Petrovice, Doc. S., and it included discussion of

the question of informing the residents about the highway ring road on

the part of the mayor of City District Prague-Křeslice, Ing. Z., in the

first issue of the periodical South-east Prague Courier. It was decided

that all represented municipalities would share in the expenses for

publishing the special issue of the periodical Petrovice Reporter, which

was to be a response to a long-term campaign led by mayor Z., according

to the number of issues normally published in their district. The

record was made by Ing. A. S., secretary of the Office of City District

Prague-Petrovice, and it bears three illegible signatures.

 

The

Constitutional Court verified through an inquiry to the Ministry of

Culture of the Czech Republic that the publisher of the Uhříněves

Reporter is the Local Office of Prague 10-Uhříněves, the publisher of

the Petrovice Reporter is the City District Prague-Petrovice, and the

publisher of the South-east Prague Courier is City District

Prague-Křeslice.

 

The

Ministry of the Interior was asked for results of the Senate elections

held in Prague on 5 and 6 November 2004, and 12 and 13 [November] 2004,

as well as results of elections to the Representative Body of Prague,

and to representative bodies of the city districts falling into election

district no. 19, for elections to the Senate held on1 and 2 November

2002.

 

From

the appendix to the decision of the State Election Commission of 8

November 2004, no. 41, the Constitutional Court determined that on 5 and

6 November 2004 (i.e., in the first round of elections) Senate

elections were held in Prague in election districts no. 19-Prague 11,

no. 22-Prague 10, and no. 25-Prague 6, with the following results:

 

 

Election District no. Number of Registered Voters Number of Official Envelopes Delivered Number of Valid Votes

19 102,236 25,880 25,726

 

Candidate Representing Political Party Votes In %

Jan Nádvorník ODS 10,201 39.65

Ing. Petr Jirava SNK Independent Association 3,689 14.33

Ing. Antonín Zápotocký KDU-ČSL 3,364 13.07

Jaroslava Dlouhá KSČM 3,085 11.99

Mgr. Daniel Kroupa Path of Change 3,011 11.70

MUDr. Ivan David CSc. ČSSD 2,131 8.28

Ing. Petr Hoffmann INDEPENDENTS 245 0.95

 

Election District no. Number of Registered Voters Number of Official Envelopes Delivered Number of Valid Votes

22 95,177 29,048 28,890

 

Candidate Representing Political Party Votes In %

Ing. Jan Malypetr CSc. ODS 10,068 38.84

Jaromír Štětina Green Party 7,137 24.70

MUDr. Marie Alušíková CSc. ČSSD 3,425 11.85

RSDr. Karel Hošek KSČM 2,864 9.91

MUDr. Milan Kudyn European Democrats 2,383 8.24

Prof. Ing. Lubomír Mlčoch CSc. KDU-ČSL 1,811 6.26

Bc. Blanka Misconiová ODA 538 1.86

John Bok Balbín’s Poetic Party 429 1.48

Mgr. Antonín Gondolán INDEPENDENTS 191 0.66

Mgr. Jan Skácel Czech Movement for National Unity 44 0.15

 

Election District no. Number of Registered Voters Number of Official Envelopes Delivered Number of Valid Votes

25 90,499 31,945 31,763

 

Candidate Representing Political Party Votes In %

Karel Schwanzenberg US-DEU 10,547 33.20

Ing. Marie Kousalíková ODS 10,495 33.04

RNDr. Václav Exner CSc. KSČM 4,691 14.76

Doc. Jan Kačer KDU-ČSL 3,455 10.87

Ing. Jindřich Tomáš ČSSD 1,914 6.02

Zdislav Růžička Common Sense Party 447 1.40

Jiří Stanislav INDEPENDENTS 214 0.67

 

 

From

the appendix to the decision of the State Election Commission of 15

November 2004, č. 42, the Constitutional Court determined that in the

second round of Senate elections held in Prague the results were as

follows.

 

 

Election District no. Number of Registered Voters Number of Official Envelopes Delivered Number of Valid Votes

19 102,149 19,003 18,907

 

Candidate Representing Political Party Votes In %

Jan Nádvorník ODS 10,407 55.04

Ing. Petr Jirava SNK Independent Association 8,500 44.95

 

 

 

Election District no. Number of Registered Voters Number of Official Envelopes Delivered Number of Valid Votes

22 95.189 24,105 24,031

 

Candidate Representing Political Party Votes In %

Jaromír Štětina Green Party 13,296 55.32

Ing. Jan Malypetr CSc. ODS 10,735 44.67

 

 

 

Election District no. Number of Registered Voters Number of Official Envelopes Delivered Number of Valid Votes

25 90,439 26,079 25,942

 

Candidate Representing Political Party Votes In %

Karel Schwanzenberg US-DEU 15,088 58.16

Ing. Marie Kousalíková ODS 10,854 41.83

 

 

 

 

From

the appendix to the decision of the State Election Commission of 4

November 2002, no. 26, the Constitutional Court determined that in

elections to the representative bodies of municipalities held on 1 and 2

November 2002 the results of the elections to the Representative Body

of Prague were as follows:

 

 

Number of Members Elected Number of Registered Voters Number of Envelopes Delivered

70 984,932 346,723

 

Political Party Votes Cast in % Number of Representatives

ODS 35.54 30

Association of European Democrats, Independent Candidates 18.37 15

ČSSD 14.66 12

KSČM 10.83 8

US-DEU 5.64 2

Coalition of SNK, SZ, SOS 5.03 2

KDU-ČSL 4.56 1

 

 

The other 13 political parties did not receive a mandate.

 

The

Constitutional Court determined that the results of elections to the

representative bodies of city districts falling into election district

no. 19 for Senate elections were as follows.

 

 

 

 

 

City District Prague 11

 

 

Number of Members Elected Number of Registered Voters Number of Envelopes Delivered

45 65,505 22,155

 

Political Party Votes Cast in % Number of Representatives

ODS 28.72 15

Independent Association 20.97 11

ČSSD 13.68 6

KSČM 12.95 6

Association of ED, NK 11.70 6

Association of Independent Candidates – Local Association 2.46 1

US-DEU 5.08 0

KDU-ČSL 4.07 0

 

 

The other two parties did not receive a mandate.

 

 

 

 

 

City District Prague-Benice

 

 

Number of Members Elected Number of Registered Voters Number of Envelopes Delivered

7 315 266

 

 

 

Political Party Votes Cast in % Number of Representatives

ODS 34.37 4

Miloslav Cubr

 

(independent candidate) 10.79 1

Karel Cibulka

 

(independent candidate) 9.58 1

Josef Luňák

 

(independent candidate) 9.47 1

 

 

The other 5 independent candidates did not receive a mandate.

 

 

 

 

 

City District Prague-Dolní Měcholupy

 

 

Number of Members Elected Number of Registered Voters Number of Envelopes Delivered

9 943 553

 

Political Party Votes Cast in % Number of Representatives

ODS 65.14 7

ČSSD 13.42 1

KDU-ČSL 12.38 1

The other party did not receive a mandate.

 

 

 

 

 

City District Prague 15

 

 

Number of Members Elected Number of Registered Voters Number of Envelopes Delivered

25 22,659 7,275

 

Political Party Votes Cast in % Number of Representatives

ODS 43.08 11

Coalition of SZ, SNK 18.12 5

ČSSD 17.51 5

KSČM 9.7 2

US-DEU 7.76 2

KDU-ČSL 3.83 0

 

 

 

 

City District Prague-Kolovraty

 

 

Number of Members Elected Number of Registered Voters Number of Envelopes Delivered

13 1,493 900

 

Political Party Votes Cast in % Number of Representatives

ODS 78.43 11

KSČM 17.63 2

 

 

One independent candidate did not receive a mandate.

 

 

 

 

 

City District Prague-Královice

 

 

Number of Members Elected Number of Registered Voters Number of Envelopes Delivered

5 217 115

 

 

The

Association of Independent Candidates in Prague-Královice, which was

the only one to register candidates, received all the mandates.

 

 

 

 

 

City District Prague-Křeslice

 

 

Number of Members Elected Number of Registered Voters Number of Envelopes Delivered

7 279 188

 

Political Party Votes Cast in % Number of Representatives

Association of KDU-ČSL, NK 52.41 4

Independent Association 22.41 2

Association of Křeslice residents

 

-Association NK 16.47 1

 

 

The other party and one independent candidate did not receive a mandate.

 

 

 

 

 

City District Prague-Nedvězí

 

 

Number of Members Elected Number of Registered Voters Number of Envelopes Delivered

9 196 123

 

 

There were 7 independent candidates, all of whom were elected.

 

 

 

 

 

City District Prague-Petrovice

 

 

Number of Members Elected Number of Registered Voters Number of Envelopes Delivered

15 4,664 1,973

 

Political Party Votes Cast in % Number of Representatives

Association of Petrovice residents 19.24 3

OPTIM-EKO 18.91 3

ODS 16.29 3

Independent Association 13.63 2

ČSSD 12.22 2

Citizens for Petroviče 7.92 1

KDU-ČSL and independent citizens of Petrovice 5.54 1

 

 

Two other parties did not receive a mandate.

 

 

 

 

 

City District Prague 22-Uhříněves

 

 

Number of Members Elected Number of Registered Voters Number of Envelopes Delivered

21 3,854 1,883

 

Political Party Votes Cast in % Number of Representatives

ODS 70.02 15

ČSSD 17.56 4

Independent Association 9.97 2

 

 

 

 

Two other parties did not receive a mandate.

 

The

petitioner’s petition to introduce documentary evidence, marked as

“appendices A-D,” was denied as superfluous, because in part this was

merely a claim by the petitioner and in part this was not evidence

relevant to the adjudicated matter.

 

 

 

V.

 

Evaluating Requirements for Proceedings Before the Constitutional Court

 

The

Constitutional Court first evaluated whether the requirements for

proceedings were met in order for it to consider and decide on an appeal

against a decision in the matter of confirming the election of a deputy

or senator, under the fourth division of part two of the Act on the

Constitutional Court. The present substantive law and procedural law

framework is unclear, because it is not unambiguously stated what the

appeal is to be directed against. The provisions of Art. 87 par. 1 let.

e) of the Constitution, and § 85 of the Act on the Constitutional Court

correspond to the legal situation at the time when these legal

regulations were passed. Under the then-valid § 47 of Czech National

Council Act no. 54/1990 Coll., on Elections to the Czech National

Council, the Supreme Court of the Czech Republic, on the basis of an

election complaint, issued a decision giving only its position, which it

was required to send to the Czech National Council. The Council’s

Mandate and Immunity Committee, under § 40 par. 1 let. a) of Czech

National Council Act no. 35/1989 Coll., on the Rules of Order of the

Czech National Council, on the basis of that position, reviewed whether

individual deputies to the Czech National Council had been validly

elected, and after that, upon its proposal under Art. 113 par. 2 of

Constitutional Act no. 143/1968 Coll., on the Czechoslovak Feeration,

the validity of the election of deputies was to be confirmed by the

Czech National Council. In this legislative situation it was logical

that an appeal was to be directed against a decision by the Czech

National Council (i.e. the relevant body of the legislative assembly)

for confirmation of election of its members.

 

The

presently valid legal framework fundamentally strengthened the role of

judicial review of elections, which is now entrusted to the Supreme

Administrative Court. There is no longer a position contained in a

decision, but a decision which decides in the matter itself about the

invalidity of elections, voting, or the election of a candidate (§ 90

par. 1 of the Administrative Procedure Code in connection with § 53 par.

1 of the Code). The Mandate and Immunity Committee of the relevant

chamber of Parliament then also has an obligation, on the basis of the

record of the State Election Commission, and any decision by the Supreme

Administrative Court on the results of the elections, to review the

validity of election of a candidate. At present, neither the rules of

order of the chambers of Parliament, any other statute, nor the

Constitution itself address who, in what manner, in what scope, and

under what circumstances, verifies the election of a deputy or senator.

This situation led to a practice where the chambers of Parliament merely

take cognizance of the report from their mandate and immunity

committees. Therefore, in this adjudicated case, similarly to the case

which was decided by the Constitutional Court as file no. I. ÚS 526/98,

the Senate did not decide that it did not confirm the election of the

senator in question, but only took cognizance of the report by its

Mandate and Immunity Committee, which states that the election could not

be confirmed, in view of the court decision. However, purely formally

(i.e. in view of the linguistic expression), a candidate’s election is

not confirmed by the decision of the Supreme Administrative Court, or

the State Election Commission, or any other body.

 

For

comparison, in the Czechoslovak Republic before the war, confirmation

of the election of a deputy or senator by the relevant chamber was

defined completely differently than under the most recent legislative

framework. At that time, the Election Court defined confirmation thus:

“verification of the election of a deputy is by its nature confirmation

that the elected person meets the conditions of eligibility for election

and that there are no grounds which would exclude him from eligibility”

(Collection of Basic Decisions and Judgments of the Election Court.

Part III., Prague 1925, res. no. 119, p. 52). Such a model would at

present correspond to the verification of meeting the requirements in

Art. 19 par. 2 of the Constitution, and § 57 of the Election Act. An

analogous concept of confirmation by the relevant chamber of Parliament

was also indicated by Constitutional Court judgment file no. I. ÚS

526/1998. In that case however, there would be two separate and legally

different decisions, and likewise the legal proceedings preceding them

would be different. Whereas in the case of confirmation there would be

public law verification of the results of a decision by the people, or

the voters of a given election district, which is valid unless proved

otherwise (thus a new decision is possible on the basis of renewing

proceedings), in the case of a decision on the validity of elections by

the Supreme Administrative Court there is an individual legal act, which

is subject to the principle res judicata. In the present legal

framework these concepts are not sufficiently differentiated; moreover,

it is problematic and quite unusual that decision making on this issue

is entrusted to as many as three bodies (not counting the conclusions of

the State Election Commission on the final results of elections),

although usually the decision is made by one body (the Parliament or the

Election Court), or by two bodies (first the Parliament, or a special

body in it, and only then the court).

 

Under

the relevant provision of the Act on the Constitutional Court, an

appeal can be filed by a deputy, senator, or the political party which

the deputy or senator represented, against a decision that he was not

validly elected, or it can by filed by a person whose election complaint

under the Election Act was granted, against a decision by the relevant

chamber of Parliament, or a body of it, confirming the validity of the

election of a deputy or senator. Thus, there is not only an appeal

against a decision by the relevant chamber of Parliament, but also an

appeal against a decision that a deputy or senator was not validly

elected. This can also be derived by a systematic interpretation of the

entire division of the statute, because, under § 88 par. 1 of the Act on

the Constitutional Court, the body which decided on the invalidity of

election of a deputy or senator can also be a party to the proceedings.

Under the current framework, the Supreme Administrative Court is

authorized to make a decision that election of a candidate was invalid.

It follows from this that an appeal is also directed against a decision

by the Supreme Administrative Court. In any case, this interpretation

can also be drawn from judgment file no. I. ÚS 526/98 (in Constitutional

Court of the Czech Republic: Collection of Decisions. Volume no. 13.

Judgment no. 27. pp. 203, no. 70/1999 Coll.), to the reasoning of which

the Constitutional Court refers. Finally, the Constitutional Court

concludes that the issue at hand must be interpreted so that persons

entitled to file an appeal will not suffer detriment as a result of a

problematic legal framework.

 

The

appeal was filed by the Civic Democratic Party, which registered the

secondary party, i.e. by a subject who has active standing to file the

appeal. It was delivered to the Constitutional Court on 13 December

2004. The lack of clarity and unity of the present legal order is

evident, among other things, also in the issue of timely filing of an

appeal, as the Supreme Administrative Court also pointed out in its

statement. The question is not only whether the period for filing begins

to run upon the decision by the relevant chamber of Parliament or upon

the decision by the Supreme Administrative Court in the matter. The

problem is also that the circle of parties to proceedings before the

Supreme Administrative Court is different from the circle of persons

entitled to file an appeal (as will be discussed in more detail below).

Whereas in proceedings before the Supreme Administrative Court the

parties to the proceedings are the petitioner, the relevant election

body, and the person whose election was contested, the persons entitled

to file an appeal are the petitioner in proceedings before the Supreme

Administrative Court, the person whose election was contested (or the

deputy or senator), and, finally, the political party which he

represented, as in the instant case. Given that the political party is

not a party to proceedings before the Supreme Administrative Court, or a

member of the relevant chamber of Parliament, then strictly speaking,

it can not be given proper notice of either the Supreme Administrative

Court decision or the decision by the relevant chamber of Parliament.

Thus, thee Constitutional Court states that here too the legal framework

has lagged behind the development of election law, and it can be

considered unnecessarily complicated. In view of the above-mentioned

position on the need to interpret unclear provisions so that persons

entitled to file an appeal will not suffer detriment as a result of the

lack of clarity, we can conclude that, in view of the date when the

Supreme Administrative Court decision in this matter was issued (3

December 2004), the ten-day period must be considered to have expired no

earlier than at the end of 13 December 2004. Therefore, the

Constitutional Court states that the appeal was filed on time, and under

no circumstances can the filing of the appeal be considered premature.

 

As

regards the scope of review within the proceedings on an appeal, it was

not necessary to address this question, in view of the fact that the

appeal contested all the substantive grounds of the Supreme

Administrative Court’s decision (see below, part II).

 

Next,

the circle of parties and secondary parties to the proceedings was

evaluated. It is precisely specified for this type of proceeding in § 87

and § 88 of the Act on the Constitutional Court. That is a special

provision in relation to the general provision of § 28 of the Act on the

Constitutional Court. These provisions indicate that the person who

filed a petition with the Supreme Administrative Court to have elections

declared invalid, and whose petition was granted, is not a party to the

proceedings or a secondary party to proceedings conducted under § 85

par. 1 let. a) of the Act on the Constitutional Court. That person’s

participation in the proceedings also can not be derived from Art. 36

par. 1 of the Charter, because that guarantees the protection of

individual rights. The subject matter of proceedings on an appeal under

division four of the Act is protection of the right to vote generally,

primarily the election results which are legitimized by Parliament for

the exercise of its jurisdiction in a composition which reflects the

will of the voters. Therefore, the purpose of regulation of this part of

the election judiciary is not primarily to protect the subjective

rights of candidates and voters, but to protect election proceedings or

the process as a whole, which corresponds to defining the circle of

subjects with active standing to file a petition to the Supreme

Administrative Court (§ 90 par. 1 of the Administrative Procedure Code).

Protection of subjective rights in such proceedings is not ruled out,

but it is only a reflex of the main function of the proceedings. The

purpose of these special proceedings is to protect the election process

and its result; subjective rights are protected by other procedural

means of protecting rights, as foreseen by, e.g. the Civil Code, the

Press Act, the Act on Radio and television Broadcasting, but also

election regulations within “objection proceedings,” all with the

application of the principle vigilantibus, non dormientibus iura

subveniunt [the law helps the vigilant, not those who sleep (Codex

Iustinianus 7, 40 1)]. In this regard the law is unambiguous, and so

there is no space for acting under § 28 par. 3 of the Act on the

Constitutional Court. Nonetheless, Ing. A. Z. was permitted to view the

Constitutional Court’s file, in accordance with § 63 of the Act on the

Constitutional Court, with the application of § 44 par. 2 of the Civil

Procedure Code, because a serious reason for it was found to exist on

his part.

 

Under

§ 15 par. 1 of the Act on the Constitutional Court panels of the

Constitutional Court decide on matters under Art. 87 par. 1 and 2 of the

Constitution that do not fall under the jurisdiction of the Plenum. The

Plenum’s jurisdiction is defined in § 11 par. 1 of the Act, and letter

k) of that provision permits the Plenum of the Constitutional Court to

reserve for itself matters other than those which are expressly set

forth in § 11 par. 1 of the Act. The Plenum of the Constitutional Court

made use of this authorization, and by resolution of 18 December 2003,

published as no. 14/2004 Coll., it provided, among other things, that it

reserves the right to decide on an appeal against a decision in the

matter of confirming the election of a deputy or senator under Art. 87

par. 1 let. e) of the Constitution. Because the petition came to the

Constitutional Court during the time when this decision was valid, the

Plenum of the Constitutional Court has jurisdiction to decide on the

petition.

 

Therefore,

the Plenum of the Constitutional Court states that the requirements for

it to review and decide on the petition have been met. It only points

out that the Constitutional Court has jurisdiction to decide in the

scope defined by the Constitution and the Act on the Constitutional

Court. Therefore, these proceedings can not replace criminal

proceedings, misdemeanor proceedings, civil law proceedings, or

proceedings in matters of the press law. Likewise, those proceedings

[e.g. proceedings in matters of protection of personhood under § 11n. of

Act no. 40/1964 Coll., of the Civil Code, as amended by later

regulations (the “CC”)] can not serve as a procedural means to contest

the validity of elections.

 

 

 

VI.

 

Substantive Evaluation

 

As

was already stated, the fundamental function of proceedings on an

appeal against a decision in the matter of confirming the election of a

deputy or senator is to ensure the proper conduct of elections. More

specifically – elections are supposed to be conducted correctly at

regular intervals (“genuine periodic elections,” “d'elections

périodiques, honnétes” -Art. 25 of the International Covenant on Civil

and Political Rights; the old version spoke of the “cleanness” of

elections) on the basis of the principle of by universal and equal

suffrage and shall be held by secret ballot, guaranteeing the free

expression of the will of the electors. This is the basic reference

point of the international standard of free and democratic elections.

The role of the Constitutional Court in this particular case is not to

evaluate whether our regulation of the election judiciary meets all the

requirements of the constitutional order (in particular Art. 1 par. 1,

Art. 2 par. 1, Art. 5, Art. 6, Art. 18 par. 2, Art. 19 par. 2 and 3 and

Art. 20 of the Constitution, as well as Art. 2, Art. 17, Art. 21 par. 1,

3 and 4 and Art. 22 of the Charter), or the international obligations

of the Czech Republic (in particular Art. 25 of the International

Covenant on Civil and Political Rights, and Art. 3 of the Protocol to

the Convention for the Protection of Human Rights and Fundamental

Freedoms). The essence of these proceedings is to ensure the observance

of those rules, and the instigation to introduce inspection mechanisms

can come not only from the person whose subjective right to vote has

been violated, but from each of the affected subjects (§ 90 par. 1 of

the Administrative Procedure Code). The subject matter of the

proceedings in terms of substantive law is to evaluate whether the

bodies competent to verify elections, or decide whether they are valid,

acted within the bounds and according to the rules which are prescribed

for them by the relevant constitutional and statutory regulations.

Although the Constitutional Court is deciding on an appeal against a

decision by the Supreme Administrative Court and the Senate, that does

not mean that it is bound only by the bounds provided in § 87 par. 3 to 5

of the Election Act. Even in the position of the final level of the

election judiciary it remains a judicial body for the protection of

constitutionality, and therefore the basic reference points for its

decision making are the above-mentioned provisions of the constitutional

order and of the Act on the Constitutional Court.

 

From

the Constitutional Court’s viewpoint, the essence of the adjudicated

matter lies in guaranteeing protection for the fundamental provisions of

the constitutional order, which give rise to the principle that the

people are the source of all state power, and in this role, among other

things, they share in establishing the state through free and democratic

elections. The statutory framework for the election judiciary and

verification of elections corresponds to this. In terms of the

procedural regulation of the election judiciary and conduct of such

proceedings, this gives rise to the rebuttable presumption that election

results correspond to the will of the voters. Presenting evidence to

rebut this presumption is the obligation of the person who claims that

there was error in elections. In the course of the 20th century this

viewpoint became practically generally accepted. The view of election

theory and practice from the 19th century, that every illegality makes

elections invalid unless the contrary is proved, has already been

overcome. Therefore, it is not decisive whether a system of three steps

is chosen for review, as the Supreme Administrative Court does,

following the example of its pre-war predecessor, or a system of one,

two or four steps (violation of the law – causation – gravity of the

violation – effect on the composition of parliament), and what methods

will be chosen. Our election judiciary does not recognize absolute

defects in election proceedings (so-called absolute confusion of

election proceedings), i.e. such violation of a constitutional election

regulation which would result in automatic annulment of elections, the

election of a candidate, or voting. In this sense, all possible defects

and doubts must be considered relative, and their significance must be

measured by their effect on the results of elections to a representative

body as such, or on the result of the election of a particular

candidate, or on the result of voting, according to the proportionality

principle. The Election Act narrows possible election defects to

violation of “this Act” – in the instant proceedings it was not

necessary to consider the constitutionality of this narrowing. This

process is based on the constitutional principle of protection of a

decision which resulted from the will of the majority manifested in free

voting and taking into consideration the rights of the minority (Art. 6

of the Constitution), as the Constitutional Court has already said in

another context, in judgment file no. Pl. ÚS 5/02 (in the Constitutional

Court of the Czech Republic: Collection of Decisions. Volume no. 28.

judgment no. 117. p. 25.- no. 476/2002 Coll.). The framework for

verifying elections is alternatively based on the prerequisite of an

objective causal connection between an election defect and the

composition of a representative body, or at least a possible causal

connection (the principle of potential causality in the election

judiciary). However, this possible causation, as established in § 87 of

the Election Act, must not be interpreted as a mere abstract

possibility. We can derive from Art. 21 par. 4 of the Charter the right

of an elected candidate to uninterrupted exercise of his office during

the specified period [cf. Constitutional Court judgment Pl. ÚS 30/95 (in

the Constitutional Court of the Czech Republic: Collection of

Decisions. Volume no. 5. judgment no. 3. p.17 – 31/1996 Coll.), which

emphasized the right of candidates, if elected, to exercise these

offices without obstacles]. From this we must conclude that the judicial

branch can change the decision of the voters, as a sovereign, only in

exceptional cases, where defects in the election process caused or could

demonstrable cause that the voters would have decided differently and a

different candidate would have been elected. Therefore the subject

matter of these proceedings is the invalidity of the election of J.

Nádvorník, not the non-election of Ing. A. Zápotocký. Incidentally,

German case law, to which the parties to the proceedings referred, takes

as its starting point the authorization of a court to annul elections

only in the case of a demonstrated causal connection between the

determined election defects and the results of elections.

 

This

is the basic constitutional basis which the Constitutional Court was

guided by in deciding this matter. It was possible to limit the instant

case to a constitutionally consistent interpretation of § 16 par. 1 a 2

of the Election Act, which led the Supreme Administrative Court to

declare invalid the elections in senate election district no. 19. Those

provisions read as follows:

 

 

 

“1)

The mayor may reserve a surface for the posting of election posters for

an election campaign, 16 days before election day. The opportunities

for using it must conform to the principle of equality of campaigning

political parties and coalitions, or candidates, in elections to the

Senate.

 

 

 

2)

An election campaign must be conducted honorably and honestly, in

particular, untrue information may not be published about candidates and

the political parties or coalitions on whose candidate lists they are

listed.”

 

An

election campaign is one of the aspects of evaluating duly conducted

free and democratic elections. As regards definition of it, which became

the subject of dispute in the instant matter, the Constitutional Court

points out that an election campaign is no longer expressly defined in

the Election Act in terms of length and content. That is the substantial

feature of our Election Act, unlike a number of other states, where

often the question of, in particular, the means of campaigning and

election materials, not to mention the inspection and restriction of

expenses for an election campaign, is regulated in great detail. The

time period for putting up posters is only a measure of maintaining

order, which regulates the situation in the “hot” phase of an election

campaign. However, logically and rationally speaking, an election

campaign can be conducted from a normative point of view only if

elections have been called ( in terms of the subject matter) or

candidate lists or candidates have already been registered (in terms of

the subjects of law). Naturally, that does not mean that voters are not

influenced by a number of other important long-term factors in terms of

the algorithm – obtaining information for making a choice in elections –

recognizing one’s own interests – taking a position and evaluation – a

decision to vote for a particular party or candidate. This is a

long-term process of forming voting preferences. Therefore, the

petitioner’s view that an election campaign is only the last 16 days

before election day can not be accepted.

 

Our

election regulations have abandoned the definition of an election

campaign as a certain period of time, as it was introduced by, e.g. § 27

par. 1 of Czech National Council Act no. 54/1990 Coll., on Elections to

the Czech National Council. They thus avoid problems connected with

accusations against political parties that they began their election

campaigns prematurely, just like the limits that are represented here by

freedom of speech and the right to information. In view of the removal

of moratoria for election campaigning, there is no longer a need for

such a definition. As regards local news media, originally it was

possible to use them, but after problematic experiences an amendment to

the Act on Elections to the Czech National Council (by Act no. 92/1992

Coll.) banned the use of local radio for election campaigning by

political parties, with the exception of a mere announcement that

election assemblies were being held. This regulation was also taken over

by Act no. 247/1995 Coll., on Elections to Parliament. Act no. 204/2000

Coll. then deleted the regulation of use of local radio. Likewise, it

has not reacted to developments in this field, as municipalities publish

their own news bulletins, and apart from local radio they also have

their own television broadcasting, teletext and websites.

 

 

 

VI. a

 

Under

§ 16 par. 1 a mayor may reserve surfaces for the posting of election

posters, sixteen days before election day. The opportunity to use them

must fundamentally correspond to the principle of equality of

campaigning political parties, coalitions, or candidates in elections to

the Senate. The Supreme Administrative Court concluded from expansive

interpretation of this provision that this is only a “demonstrative

indication of a generally valid approach to means of communication which

the municipality has at its disposal.” In the court’s opinion, it

follows from this that the principle of equality of campaigning entities

must be respected during the use of all means of communication held by

the municipality.

 

The

Constitutional Court does not fully agree with this approach to

interpreting § 16 par. 1 of the Election Act. First, it is not clear

from the statutory provision what measures the mayor is to use to

achieve equal use of the surfaces reserved for posting election posters

by campaigning entities. In practice, each of them will have to be

guaranteed access to these surfaces. Equality of access consists of an

equal opportunity to use these surfaces, not in the fact of how they

were used by campaigning entities. Therefore, the mere fact that some

posted fewer posters on the designated surfaces than others, or that

some did not put up any posters, can not be used to conclude that equal

opportunity to use the surfaces was not preserved. Individual paragraphs

of § 16 of the Election Act must be interpreted in the full context.

Therefore, one can not overlook the fact that there are precisely

defined conditions, not only for using the surfaces for putting up

election posters, but also for using public media for an election

campaign. Printed materials published by municipalities are by their

nature closer to public media than to surfaces for putting up election

posters. If the legislature wanted to provide rules for their use during

elections, it would have had to do so directly in a statute, as was

done at the beginning of the 1990s.

 

The

Election Act is a legal regulation which implements into practice one

of the fundamental political rights, the right to vote and to be

elected, expressed in Article 21 of the Charter. Under Article 21, par.

3, last sentence of the Charter, conditions for exercising the right to

vote shall be provided for by law. If the law does not forbid using

municipal periodical for an election campaign, then they can be used for

an election campaign provided that equal access for political parties

is maintained. Interpretation of a statute can not expand a statute

where there is no support for it in the statute, particularly where it

does not concern the exercise of sovereign authorizations of a

municipality as a public corporation. The formulation of § 16 par. 1 of

the Election Act is unambiguous insofar as it concerns only surfaces for

putting of election posters. The purpose of this provision is not

primarily a rule for conducting an election campaign, but an

authorization for a mayor in the field of public order and preventive

protection of property from “wild” putting up of posters long before

actual voting. The obligation to provide equal access then follows from

the abovementioned constitutional principles. In the instant case, the

issue was not whether Ing. Z. had access to these media, but whether

publication of the cited materials was violation of the rules of

conducting an election campaign, as set forth by § 16 par. 2 of the

Election Act. In terms of Art. 5 of the Constitution and Art. 22 of the

Charter there is no dispute about observing equal access for political

parties to media published by a public corporation.

 

 

 

VI. b.

 

Therefore,

the fundamental problem in the instant matter is not violation of § 16

par. 1 of the Election Act, which could hypothetically be derived only

by expansive interpretation, and only in the event that political

parties had not been given access to the cited media. The Supreme

Administrative Court sees as the fundamental prerequisite for its

verdict the violation of the principle of honorable and honest conduct

of an election campaign, as defined by § 16 par. 2 of the Election Act.

In its opinion, this requirement was met when the cited articles and

declarations against Ing. Z. were published. The Supreme Administrative

Court finds violation of the principle of equality among candidates in

the fact that shortly before the elections two periodicals published by

municipalities printed two articles containing criticism of one of the

election candidates, criticism which, in its opinion, was incorrect and

unfair. Even if the Supreme Administrative Court’s conclusion, with

which the Constitutional Court disagrees, that these publications are

the same as a surface designated by a mayor for putting up posters, were

valid, this would not be violation of the principle of equality as it

is meant by § 16 par. 1 of the Election Act. The issue is the right of

equal access, not an obligation on all election candidates to put up a

certain number of posters, the same number for all. In this sense,

therefore, it would be possible to speak or inequality only if, for

example, Ing. Z. sent an election article to both periodicals by their

deadline, and they refused to print it. However, the Supreme

Administrative Court made no such determination.

 

The

provision of § 16 par. 2 of the Election Act is basically the result of

unwillingness by contestants in an election campaign to conclude

pre-election agreements on the rules of the election contest, setting a

“referee” who would decide whether obligations from that agreement have

been met “honorably and honestly.” This phrase is aimed toward such

rules, and it can not be given the meaning, e.g. of good morals under § 3

par. 1 of the Civil Code. Likewise, the legislature itself was not

willing to prepare an ethical codex for the elections, just like

affidavits on the conduct of an election campaign which must be signed

by those who want to run. It was up to the legislature to newly regulate

the nature of election bodies. However, as a consequence there is no

longer any election body which would at least supervise the observance

of legal regulations on elections and flexibly draw conclusions which an

election campaign was still going on.

 

There

is no doubt that the media which are at the disposal of local

governments, even though they are not official bulletins, to which the

Print Act does not apply, are subject to stricter rules, in terms of

being used in an election campaign, than is the case with publishers who

are private law entities. Although this does not mean that they have an

obligation to guarantee the same mechanical space for individual

candidate parties and person, they too are subject to the rule of equal

“access.” Different conduct would be inconsistent with the rules of free

competition between political parties under Art. 5 of the Constitution,

and the free competition among political forces under Art. 22 of the

Charter. If the legislature does not yet forbid the use of such media,

their use for election campaigning must be measured by the rules of

equal opportunity, and the publisher or operator of such media must

weight whether it can guarantee that this principle will be respected.

However, we can not agree with the petitioner, who claims that the rule

of Art. 2 par. 3 of the Charter applies, that what is not forbidden is

permitted. These periodicals, in the event that they are made available

to political parties, are subject to the principle of equal opportunity,

which flows from the principle of free competition among political

parties and political forces (Art. 5 of the Constitution, Art. 22 of the

Charter), as the Supreme Administrative Court correctly concluded. A

different approach could suggest to voters that the municipality, as a

public corporation, prefers only certain political parties.

 

There

is no dispute that the printed materials published as municipalities

reporters, because they are in the hands of the public authorities, must

remain correct and neutral. In the position of a mayor, a candidate

must observe certain rules, because in that position he is a public

official, and thus does not have the general freedom of expression as

ordinary citizens. In short, he can not use his position as mayor to

benefit his election campaign, or someone else’s campaign. The submitted

materials indicate that the campaigning by the mayors against Ing. A.

Z., whether direct or indirect, was not consistent with the requirements

of honest and honorable conduct of an election campaign (especially the

misuse of an anonymous letter), as can be concluded from § 16 par. 2 of

the Election Act. In the articles which the Supreme Administrative

Court took into consideration exclusively did not concern a conflict

between candidates for a senate seat, but a dispute between mayors who

had different opinions on investments which affected their city

districts in various degrees and who took advantage of the more

vulnerable position of their opponent to make a more effective attack on

his person. During an election campaign this must be seen as an attempt

to influence the results of elections, although the Constitutional

Court determined that otherwise this was a matter which had continued

for a longer period of time, and the instant case involved a reaction to

the position of someone who supported a different position, who was

simultaneously running for the Senate .

 

A

different question is then the appearances by mayors and other

municipal government officials in media such as in this case. Here it is

not a question of equal opportunity for the political parties for which

they were elected, but a question of their appearance as public

officials, representing the interests of municipalities and their

residents, as follows from the text of their oath of office, in which

they undertake, on their honor and conscious, to perform their office

conscientiously, in the interests of the municipality (city) and its

residents, and be guided by the Constitution and laws of the Czech

Republic (cf. § 69 par. 2 of the Municipal Establishment Act). In such a

case it can not be claimed that they can make appearances, on the basis

of their office, in an election campaign to the benefit of a particular

party, and claim, as public officers and official persons (and not as

individuals) freedom of expression under Art. 17 of the Charter.

However, this does not mean that they can not make appearances or even

campaign in an election as party functionaries or as individuals;

likewise, nothing prevents them from identifying their office in such an

appearance. The fact that a mayor speaks in a political or other

dispute as a politician (not as an official), does not mean that he can

not state a fact which is familiar generally notoriously familiar to the

citizens of the municipality. It would be absurd to deny mayors and

other public officials and official persons to take part in an election

campaign. That too would be a violation of equal opportunity of such

officials as candidates and of their parties and violation of the

constitutional principle of free competition, which logically requires

the possibility for participation by competing parties. Therefore, the

distinguishing criterion can be only the fact that a mayor, as an

official person and municipal official, on the basis of his office, may

use facilities which another citizen can not use (budget funds, a

telephone, computer, official automobile, official bulletin board in the

municipal office, speeches connected with his office, printed materials

with the letterhead of the municipality of municipal office, giving his

expression the flavor of being official, etc., which could influence

older voters in particular). The use of such means is impermissible in

an election campaign. However, the Supreme Administrative Court passed

over this question. In this regard it is also necessary to emphasize

that German case law, which the Supreme Administrative Court cited in

this connection, identifies as election error a situation where there

are numerous and massive violations of the ban on using the public media

in an election campaign, or where state bodies influence the election

of their bodies in a significant degree. One can conclude from this that

elections can be annulled only as a result of fundamental and

substantial violation of state neutrality in the course of elections.

However, the adjudicated matter does not involve such a case.

 

Likewise,

the proceedings were objectively marked by the fact that, until the

proceedings before the Constitutional Court, the secondary party did not

have an opportunity to point to other circumstances of the polemics

which arose on the basis of the first issue of the South-east Prague

Courier published by the City District Prague-Křeslice. These

circumstances put the articles in the Uhříněves Reporter and the

Petrovice Reporter into a somewhat different context than was conceived

in the reasoning of the decision by the Supreme Administrative Court,

but this could not in any way affect the negative evaluation fo the fact

that one issue misused an anonymous, unverified text. On this point the

Constitutional Court agrees with the evaluation of the Supreme

Administrative Court; however, it differs in what conclusions can be

drawn from it under the principles provided in § 87 of the Election Act.

 

As

regards the content of an election campaign, the Constitutional Court

is aware that during the course of one arguments are often presented to

voters in a very emotional and heightened form, and are intended to

influence their electoral behavior and their decision whom to vote for.

However, the purpose of an election campaign in a pluralistic democracy

is undoubtedly also to evaluate the most controversial issues in the

programs of political parties and candidates generally, as well as their

personal qualities and capability to hold elected public office. Only

in that case will voters be able to make informed decisions, and only

thus can the fundamental constitutional principle that the people are

the source of all state power be fulfilled. Insofar as the Election Act

speaks of the requirement for honorable and honest conduct of an

election campaign, it means what was previously called the cleanness of

elections (cf. § 56 par. 1 of Act no. 75/1919 Coll., The Election Code

in Municipalities of the Czechoslovak Republic). However, these concepts

can not be interpreted in terms of private law and general morality,

because they are being applied in the context of an election campaign,

which is nothing more than a fight for voters’ votes. Its negative

effects can be regulated, but can not be ruled out by law.

 

In

this connection, the Constitutional Court considers it instructive to

discuss the judgment of the Election Court of 23 April 1926 (Collection

of Fundamental Decisions of the Election Court. Part IV., Prague 1928,

no. 183, p. 58), in which the court said, in a similar context, that the

required “serious violation of free and clean elections is of course

also impermissible campaigning, which degenerates into terror, whereby

physical and psychic pressure is applied to the free decision of voters

to such a degree that even the secret ballot is not able to ensure a

voter’s free decision. However, if campaigning did not exceed this

boundary, it can not be seen as violating free and clean elections, even

if it came from official persons.” Although today’s legal framework and

legal awareness has shifted markedly, nevertheless it characterizes the

necessary public law manner of viewing the present issue, as it was

presented to the Supreme Administrative Court by Ing. A. Z., and which

is in essence more a civil law problem. The lacking effective protection

in this regard will always lead to an effort to resolve such disputes

through election complains. However, the protection of personhood rights

in these proceedings can only play a supporting role in terms of

guaranteeing and observing the rules for the proper conduct of an

election campaign.

 

Therefore

the Constitutional Court concluded that neither an objective nor

potential causal connection was proved between the content of the cited

publications and their distribution among voters and the election of J.

N. We must emphasize that the Supreme Administrative Court only

considered the question of whether Ing. Z. could advance to the 2nd

round of Senate elections. However, in terms of the abovementioned

presumption that election results are valid, it was not proved that the

elements of the fundamental substantive law of our election judiciary

were present, i.e. whether under § 87 par. 4 of the Election Act the

provisions of the Act were violated in a manner which could influence

election results. It can not be required, as the petitioner urges, and

it is clear from that substantive law provision, that the violation in

fact have an influence on elections results. The Supreme Administrative

Court did not consider the question which the Constitutional Court

considers significant in terms of meeting § 87 par. 4 of the Election

Act, that is, whether it can be claimed with sufficient probability that

J. N. would not be elected senator in the 2nd round of elections as a

result of Ing. Z. hypothetically advancing to the second round. However,

the Supreme Administrative Court completely overlooked this question,

although without answering it one can not conclude that the election

results were influenced, as is required by § 87 par. 4 of the Election

Act in order for them to be violated. Instead, it focused only on

evaluating the results of voting in the 1st round of elections in

relation to the candidates Ing. A. Z. and P. J. However, violation of §

16 par. 2 of the Election Act can not by itself, without further proof,

lead to the conclusion that Ing. A. Z. could have advanced to the 2nd

round.

 

The

reason for declaring the election invalid could also been the

conclusion which better corresponds to § 87 par. 5 of the Election Act,

that in that case there is a high degree of probability that Jan

Nádvorník would not have been elected a senator. However, this can not

in any way be concluded form the abovementioned data on the results of

the 1st and 2nd round of elections, from the voter participation in

those elections, or from the support for the party for which Ing. Z. was

a candidate in the district. Here we must point to the election results

as they are stated in part IV. Against consideration of a different

possible result, it is enough to state that in all three Prague Senate

elections ODS candidates received a virtually identical number of votes

in the 1st and 2nd rounds of elections. Yet, in the 2nd round of

elections voter participation declined by an equal ration, which is

typical generally, not only in Prague. Therefore, one can not even

hypothetically conclude that, with the given level of voter

participation in the 19th election district, out of 18,907 votes cast,

J. N. would not have received precisely the same 10,407 votes as he

actually did. Likewise, there is no probable reason to claim that if

Ing. A. Z. had advanced to the 2nd round approximately 21 thousand

voters would have come and, in addition to those 10,407 voters, all of

them would have voted for Ing. A. Z. Basically, that candidate would

have had to receive the votes of all voters who were willing to come to

vote in the 1st round for his opponents from the Association of

Independent Candidates, the KSČM (Communist Party), the Path of Change,

and ČSSD (the Social Democrats). Likewise, the voting in Prague and

related city districts in 2002 does not permit reaching a different

conclusion with a higher degree of probability. In elections in CD

Prague-Křeslice KDU-ČSL did receive 52 % of votes, but with 188 voters

participating (i.e. 67% participation versus 25% participation in the

1st round of Senate elections). One could also speculate that, if Ing.

A. Z. had advanced to the 2nd round, voter participation might have been

even lower, in view of his party profile compared to the candidate for

the Association of Independent Candidates, and thus the change for a

change in the election results would likewise have been even lower.

Therefore, the data provided do not lead to any logically or

statistically documentable conclusion that, applying the principle of an

absolute majority, there was a high degree of probability that anything

would have change in the election results of the 2nd round and that J.

N. would not have been elected senator. Therefore, the presumption that

the voters’ decision in an election is valid was not cast in doubt in

such a manner that the Constitutional Court could agree with the Supreme

Administrative Court’s conclusion as regards the validity of the

election of J. N.

 

If

the legislature will not be able to distinguish the special features of

review of elections that are valid, either in the case of the entire

Chamber of Deputies, or a third of Senators in the case of elections in

one election region or a Senate election district v případě jejich

platnosti v případě celé Poslanecké sněmovny nebo třetiny senátorů v

případě voleb v jednom volebním kraji nebo jednom senátním volebním

obvodu (cf. in terms of linguistic interpretation “results” and “result”

of elections), such problems of interpretation will continue to arise.

The purpose of elections in election district no. 19 was undoubtedly to

elect a senator, not to advance to the 2nd round of elections.

Therefore, the results of these elections can only be the election of a

senator. Therefore, in this case application of § 87 par. 5 appears more

fitting, even though it can not repair the shortcomings in formulation

and stArting points of that provision. The Supreme Administrative Court

itself posed as steps in evaluation the requirement that 2) the

relationship between this illegality and the election of the candidate

whose election is contested by an election complaint, and 3) the

fundamental intensity of this illegality, the consequences of which must

at a minimum cast considerable doubt on the election of the candidate

in question. In reality, however, in practice it concentrated only on

meeting requirement 1), i.e. violation of the Election Act in both

publications, and in fact in this regard it completely passed over the

issue of the election of J. N. being cast into considerable doubt, and

concentrated only on considering the possibility of the influence of two

problematic publications on the possible advancement of Ing. A. Z. to

the 2nd round.

 

In

this regard, without regard to the circumstances of delivering the

petition to open proceedings before the Supreme Administrative Court, we

can not overlook the fact that its conclusions are necessarily marked

by the fact that the elected candidate in question, whether through

someone’s fault or not, could not present his arguments to the court.

However, the Supreme Administrative Court can not be criticized for

annulling the elections in their entirety (of course, only in one

election district). The Election Act does not give it any other option.

This shortcoming is inconsistent with the principle of proportionality

of interference by the state authorities, but the primary subject matter

of this type of proceedings, is not review of the constitutionality of

the Election Act, just as it is not protection of subjective rights.

 

In

light of the foregoing, it was not necessary to consider in more detail

the issue of the petitioner’s objection that the of the Supreme

Administrative Court’s conclusions regarding the intensity of

unlawfulness were incorrect and illogical. Nonetheless, the

Constitutional Court could not agree with its view that the Supreme

Administrative Court’s consideration is quite incorrect and illogical on

this point, even though the issue is certainly not the intensity of

unlawfulness (either the law is broken or it is not), but the gravity of

the influence of this unlawfulness on the composition of a

representative body. it is natural that in terms of a voter’s election

decision the more serious violations of election campaign rules are

those which happened during the time of that decision making, which, in

the case of undecided voters, is precisely in the last days of an

election campaign. This conclusion of the Supreme Administrative Court

flows from long-term settled case law in election matters in this

country (in times of free elections) and abroad. However, the essential

thing is that annulment of elections can not be taken as a punishment

for violating election regulations, but as a means to ensure the

legitimacy of an elected body. It is the probability of influence of an

election defect of election offense (§ 177 Criminal Code, § 16 par. 5

and 7 of the Election Act) on the election result in particular

elections with particular voters that is decisive. A mere abstract

possible causal connection is not sufficient. The situation would be

different in the case of an election campaign clearly being conducted in

an unfair manner, inconsistently with the requirement of proper conduct

of elections and election competition, which could, with a high degree

of probability, lead to an opposite election result than was assumed,

for example, according to correctly conducted pre-election polls. It

would have to be proved that, with a high degree of probability, without

the cited publications the result of the Senate elections in the given

district would have been different, which the abovementioned conclusions

do not prove.

 

The

Constitutional Court is aware of the complexity of the adjudicated

matter, and especially of the shortcomings and gaps in the legal

framework in this area. Therefore, it expects that the legislature will

weigh, on the basis of information obtained, both substantive law and

procedural law questions concerning the review of validity of elections

and their verification , so that it will not evoke unnecessary problems

and be internally consistent (cf. the analysis in Filip, J., Holländer,

P., Šimíček, V.: The Act on the Constitutional Court. Commentary. C. H.

Beck, Prague 2001, pp. 405-411). Likewise it is necessary to weight the

system of means for protection elections and the right to vote, just

like other subjective rights in the course of an election campaign (e.g.

abbreviated proceedings on printed corrections of errors and

apologies), so that the person who caused violation of such rules can be

penalized. In such a case the threat of annulling the result of

elections as the only possible consequence is inconsistent with the

constitutional principle of proportionality of interference by public

authorities. This certainly does not rule out disqualifying a candidate

who committed a serious election offense (e.g. fraud, bribery). In this

regard the Constitutional Court is forced to say that, compared to other

countries, the legal regulation of defects in the election process,

election offenses, and the rules for conducting an election campaign in

general, is, for one thing, very fragmentary, and for another, basically

rooted in conditions which correspond to “elections” from the times of

the previous regime. Therefore, the legislature will have to weigh

whether the election culture of voters, candidates and public officials

is on such a level that regulation of these issues is unnecessary, or

whether it will guide electoral behavior through pre-set rules that will

create a situation of legal certainty for the subjects of the election

process and which will be at least a prerequisite for electoral economy.

 

Therefore,

on the abovementioned grounds, the Constitutional Court concluded that

the secondary party to these proceedings, J. N., was validly elected a

senator in elections to the Senate of the Parliament held on 5 and 6

November 2004, and on 12 and 13 November 2004, in election district no.

19, Prague 11.

 

Therefore,

under § 91 par. 3 of the Act on the Constitutional Court all decisions

of other bodies which conflict with this judgment lose their effect,

i.e., especially:

 

a) decision of the Supreme Administrative Court of 3 December 2004, file no. Vol 10/2004-24,

 

b)

decision of the Mandate and Immunity Committee of the Senate of the

Parliament, no. 11 of 14 December 2004, which states that the committee

could not confirm the mandate for election district no. 19, Prague 11,

in view of the fact that the Supreme Administrative Court decided by its

resolution no. Vol 10/2004-24, that elections in that district were

invalid,

 

c)

decision of the Senate of the Parliament, no. [___], from the 1st

session of 15 December 2004, in which the Senate “takes cognizance” of

point II. of the report from the Mandate and Immunity Committee on the

results of confirming the validity of election as a senator,

 

d) decision of the president, no . 653/2004 Coll., on calling repeat elections to the Senate of the Parliament.

 

 

 

Notice: Decisions of the Constitutional Court can not be appealed.

 

 

 

Brno, 26 January 2005

 

 

 

 

 

 

 

 

 

Dissenting Opinion of justice JUDr. Eliška Wagnerová, Ph. D.

 

 

 

My dissenting opinion is based on the following considerations:

 

 

 

1.

The justification of judicializing purely political processes 2. A

liberal constitutional democracy versus a democracy without attributes

3. Genuine elections

 

 

 

Re 1.

 

Democracy

in the legal sense must be applied to “already existing legal norms,

other norms and institutions,” which control the process of collective

decision making in a democratic political society. The judicialization

of this sphere creates the possibility that “in the name of liberal

constitutionalism one can, through objective judicial review, deny the

most important right available to citizens in liberal democracies, i.e

the right to participate in public affairs.” (S. Issacharoff et al., The

Law of Democracy, 1998).

 

Many

authors and schools of thought believe that the judiciary applying the

law should maintain a respectful distance from purely political

processes, which are supposed to produce judicially incontestable

solutions, and there is an equal number of opposite theories. A general

response to this dilemma is not possible. Even the most entrenched

educated opponents of judicialization recognize that its scope and depth

depends on the particular historical situation (see, e.g., R. A.

Miller, Lords of Democracy: The Judicialization of “Pure Politics” in

the US and Germany, 61 Wash. and Lee L. Rev. 587, Spring 2004). They

conclude that the judicialization of “pure politics” (the term is an

obvious allusion to Kelsen’s pure legal learning) is a reaction by

constitutions against the shock of a preceding dictatorship, that is, a

response to the misuse of purely political processes by previous

political regimes. This experience contributed to the identification and

recognition of the constitutional principle called “militant democracy”

(streitbare Demokratie, see, e.g., decision BVerfG z 24. 3. 2001, 1 BvQ

13/01), which is the concept of a democracy which is entitled,

required, to protect itself from threats from within. Therefore, the

political will formed in political processes is reviewable by courts,

and in the final instance by the Constitutional Court.

 

The

Czech Constitution took over this concept, being formed on the basis of

essentially similar experience as that from which the German

fundamental law (Grundgesetz) arose. Likewise the concept of the Czech

Constitutional Court and its areas of jurisdiction (in particular review

of norms, but also others, including jurisdiction over elections)

indicate acceptance of this doctrine.

 

 

 

Ad 2.

 

Democracy,

whose most distinctive external manifestation are elections, has many

definitions. Nevertheless, since antiquity democracy has been described

as government by the people, finding its expression in elections (and

referenda). The Czech Constitution, however, has not adopted this

simplistic and formal essence of democracy (which, if practiced as such,

can in formally regular elections bring to power racists, fascists,

proponents of class hatred and other political forces that deny the

fundamental rights and freedoms). It ties democracy to substantively

understood legal statehood (Art. 1 par. 1 of the Constitution), and

places the fundamental rights and freedoms under the protection of the

judicial branch (Art. 4 of the Constitution). This concept of democracy

has also been confirmed in the Constitutional Court’s case law (Pl. ÚS

19/93). In other words: The Czech Republic has signed on to democracy

with the attribute “liberal,” more precisely, to constitutional liberal

democracy. Such a democracy includes not only formally understood

elections, but elections which must comply with certain minimum

requirements (see below), as well as the rule of law, separation of

powers, and respect for and protection of the fundamental rights and

freedoms. What deep conflicts can arise between democracies without

qualifiers on one side and constitutional liberal democracies on the

other side, are powerfully described – documented by experience from the

whole world – by F. Zakaria (Budoucnost svobody [The Future of

Freedom], Academia, Prague, 2004).

 

I base my dissent from the majority opinion on the accent of the abovementioned postulates.

 

 

 

Re 3.

 

If

I begin with the foregoing, I can not understand genuine elections to

be merely a process which will be subject to review only within the

scope of the election act itself, that is, the only thing which will be

examined is whether the bodies competent to verify elections, or

competent to decide if they are valid, acted within the bounds and

according to the rules which are expressly set forth for them by the

relevant constitutional and statutory provisions (the manner accepted by

the majority opinion). On the contrary, in my view it is necessary to

interpret even a flawed legal framework in terms of the abovementioned

positions, which give rise to other principles immanently present in the

Constitution, even if not explicitly spoken.

 

Thus,

I consider quite fundamental the principle that the total “pureness” of

elections can be concluded only on the assumption that the will of the

voters is created without guidance or instructions or influence by the

state power. I understand this principle to be one of the fundamental

structural principles of the Czech Constitution. All state bodies

created by elections must be the result of the actually authentic will

of the members of a civil society, that is of the voters, not the

product of a process which was manipulated by the state power,

regardless of whether successfully or less so. The failure to respect

this principle, taken to the extreme (or better said, to a perverse

degree) led to the election results which we were faced with before

1989.

 

There

is no dispute about the fact that in election district no. 19, Prague

11 the public authorities interfered in the election process. This

interference was of two kinds. The constitutionally unacceptable, but

simple form, was committed by the Křeslice Reporter no. 2, which

contained campaign material in favor of A. Z., though it was issued with

the help of funds gathered precisely for that purpose (see the title

page of the periodical). However, the municipal publications, the

Uhříněves Reporter no. 10/2004 and the special issue of the Petrovice

Reporter, published on 3 November 2004 (both periodicals financed by

public funds), committed much more intensive interference by the public

authorities in the election process because in a very coarsely

defamatory manner (publishing an anonymous letter in context with a

leader by the mayor of Uhříněves, or interview with a member of the

municipal council with JUDr. Č. together with defamatory evaluation of

A. Z. in the Petrovice Reporter) liquidated, or at least attempted to,

the senate candidate from a rival political party.

 

I

conclude from this: the case of the simple election campaigning

conducted by misuse of the municipal publication, but published with

money collected for that purpose, can be considered conduct which is

ultra vires in relation to the municipal jurisdiction, and which

seriously violates the purity of the election process. Nevertheless, in

weighing that defect on the one hand and the importance of the elections

themselves on the other, one can conclude that this defect need not

result in an invalid election. This is because the intensity of that

violation affects the structural principle of the Constitution (see

above), but does not violate substantive constitutional principles (see

below). This defect could in future be addressed by a penalty, which the

Election Act should anticipate, as the majority opinion says, in a call

upon the legislature, with which I fully agree. However, I can not

reach the same conclusion in the second case of violation of the

election process.

 

For

me, defamation of an individual, committee by the public power with the

use of public resources (a public publication) and public funds, is

literally abuse of public power for a constitutionally completely

unacceptable purpose (weakening a political opponent’s chances in an

election by attacking his dignity), which, in my eyes, removes the

“pureness” of the election process so that it can no longer be called

genuine elections. My (and I hope not only my) memory of history, and

experience from the present day, do not permit me to tolerate such

excesses of public power, because this is no longer a case of simple

acting ultra vires. In relation to an individual, this can be completely

destructive conduct through abuse of public power. In such cases, a

civil law complaint for protection of personhood appears to me to be a

completely inadequate remedy, not to mention the fact that the

impermissibility of such conduct reaches considerably beyond the

interests of the individual, and I do not hesitate to say that such

conduct by the public power “unglues” the very foundations of our

constitutional and political system. Constitutionally normatively, that

system is founded on the public power’s respect for the dignity of the

individual, and no breach of this fundamental substantive constitutional

principle can be tolerated, because it is interference in the very

fundamental requirements of a democratic law based state, viewed

substantively (Art. 9 par. 2 of the Constitution).

 

In

other words: defamation of a candidate or political party by the public

power in an election campaign deprives the election itself of the

attribute “genuine.” Such a process, cloaking itself formally in the

garb of elections, is not, constitutionally substantively speaking, an

election, and therefore the formal elections must be declared invalid,

as the Supreme Administrative Court correctly did.

 

 

 

Conclusion

 

I

can not agree with the majority opinion in other aspects as well.

Primarily, I consider the method of examining a causal connection

between violation of the Act and the results of the election to be

misleading and unproductive. I do not agree with the statement that the

law either is or is not violated, i.e. that the intensity of violation

of the normative framework of the election process is irrelevant. On the

contrary, I believe that the Constitutional Court should always examine

whether a particular violation of the election process still permits

describing the elections as genuine, and which one does not, and then

make its verdict accordingly to that determination. Examining the causal

connection between violation of the law and of the Constitution and the

result of elections, regardless of how deep in the constitutional

foundations of the state the interference is aimed, will always be on

the level of non-documentable speculation. The conclusions which the

majority drew from the materials from the State Election Commission are

unconvincing in my eyes. That they are unconvincing is proved by the

victory in election district no. 22 of J. Š., who, in the second round,

virtually doubled the number of votes he received, although the Green

Party, similarly to KDU-ČSL, is not a favorite in Prague election

districts. This example documents the fact that the method chosen by the

majority in addressing this case is not suitable; in contrast to that

the abovementioned method of interpreting what, in terms of the

Constitution can still be considered genuine elections (i.e.

constitutional evaluation of the intensity of interference) is a

procedure which can be expected from the Constitutional Court, because

it thereby interprets, or makes more specific, the Constitution and the

constitutional order.

 

Further,

in my eyes the majority opinion does not sufficiently reflect the

purpose of judicial review of the political process which elections are,

as I indicated above. This is evidently because it takes the incorrect

stArting point that elections are to be an expression of the

constitutional maxim that the people are the source of all state power.

However, this repeated statement overlooks the classic (Sieyés)

separation of powers into the constituitive power, which really does

belong exclusively to the people (the people are the source of power)

and all institutions, including the Constitutional Court, bow before it,

and constituted power, which is exercised within the framework of the

Constitution. Elections, as a means provided by the Constitution, are,

of course, an exercise of the constituted power [see, e.g., V. Klokočka,

Ústavní systémy evropských států [The Constitutional Systems of

European States], Linde, Prague, 1996, p. 102: “Even in the exercise of

the right to vote (...) the group of citizens-voters moves within (...)

the constituted power. In this case too the people are the exercisers of

power.” In addition, see, for example, the Constitution of Germany,

which provides in Art. 20 that all state power arises from the people (a

characteristic of the constitutive power) and is exercised by the

people through elections and voting and through legislative, executive,

and judicial bodies (constituted power) and a wealth of other foreign

literature]. And it is precisely the Constitutional Court which is

called upon through its jurisdiction to review the acts and processes of

the constituted power, regardless of who performs them. The

Constitutional Court has this duty even if the constituted power is

exercised by the voters (i.e. definitely not by the people) in

elections. In that case too the Constitutional Court can not rid itself

of the duty to determine whether the constituted power was exercised in a

constitutional manner, or in a constitutionally consistent process.

 

In

other words (to paraphrase K. Thein, Mladá Fronta Dnes 8 January 2005,

E-III): the Election Act (like every statute) is a text with one

wording, and an endless number of ways to circumvent that wording. In

the environment of the Constitution, democracy, as a mocked and misused

quantity, is constantly on the edge of dysfunction. To contribute to the

functionality of a constitutional liberal democracy is a task worthy of

the Constitutional Court.

 

 

 

Brno, 26 January 2005

 

 

 

 

 

 

 

 

 

Dissenting Opinion of JUDr. František Duchoň

 

 

 

Act

no. 247/1995 Coll., on Elections to Parliament (the “Election Act”),

provides in § 16 par. 2 that n election campaign must be conducted

honorably and honestly, in particular, untrue information may not be

published about candidates and the political parties or coalitions on

whose candidate lists they are listed.

 

In

proceedings before the Constitutional Court it was proved that the

election campaign in election district no. 19, Prague 11 was not

conducted in accordance with that provision. During that election

campaign publications published as municipal reporters and financed from

public funds were used. These reporters published materials which did

not serve to inform the citizens of these localities, but were a

negative pre- an election campaign against one of the candidates in

Senate elections in that election district. Thus, this concerned not

freedom of expression and the right to information, but an election

campaign, moreover one led in a negative spirit. This is especially

evidenced by publication of the anonymous letter, about which it has

been known for at least 3 years that it was not written by members of

the representative body of City District Prague-Petrovice, as it stated.

 

This

not only violated the abovementioned provision of the Election Act, but

at the constitutional law level it violated Art. 5 of the Constitution

of the CR, under which the political system is founded on the free and

voluntary formation of and free competition among those political

parties which respect the fundamental democratic principles and which

renounce force as a means of promoting their interests. This also

violated Art. 22 of the Charter, under which Any statutory provisions

relating to political rights and freedoms, as well as the interpretation

and application of them, shall make possible and protect the free

competition among political forces in a democratic society.

 

Free

competition can not exist if certain subjects in that competition are

advantaged by having at their disposal and using resources which are

supposed to serve completely different purposes (municipal reporters and

other material resources which city halls and municipal mayors have at

their disposal), as happened in this case. Thus, these resources – in

this particular case municipal reporters, published with public funds –

were misused for purposes of the election campaigns of municipal

politicians. That also violated the principle of neutrality of the

public power in a pre-election campaign, which arises from Article 2

par. 1 of the Constitution ČR, under which all state authority emanates

from the people; they exercise it through the legislative, executive,

and judicial bodies.

 

The

process of forming the will of the people takes place primarily in

elections The honorable and honest conduct of elections is a value which

can not be abandoned. Elections are the substance and foundation of

democracy; the bodies of state power are created on the basis of

election results (see Article 2 par.1 of the Constitution ČR). Elections

are always a selection of particular people. We can conclude that to a

certain degree the relationship is – how the election campaign goes

determines how the elections go; how the elections go determines what

the bodies of state power are like.

 

I

can not agree with the judgment’s relativization of the concept of an

honorable and honest conduct of an election campaign: “these concepts

can not be interpreted in terms of private law and general morality,

because they are being applied in the context of an election campaign,

which is nothing more than a fight for voters’ votes.” Here the

Constitutional Court showed that it distinguished honor and honestly in

the areas of private and public law, and that in each area these values

mean something different. In practice it thus abandoned the value of

honor and honesty in the area of “a fight for voters’ votes.” There

should not be different rules of honor and honesty for relationships

between individuals and for the election process, which is the

foundation of representative democracy, from which the bodies of state

power arise.

 

Insofar

as the Constitutional Court was deciding in a situation where, in the

Czech legal order, the only consequence of violating of the principle of

an honorable and honest election campaign is the non-election of a

candidate, it should have gone in that direction. It would have been

very harsh and unfair vis-à-vis the candidate who did not take part in

the negative election campaign at all, but on the other hand the

Constitutional Court would have made clear that it would not in future

tolerate flagrant violation of the rules of an honorable and honest

election campaign. At the same time, it would have forced the

legislature to make a more suitable statutory framework for the election

process. Honorable and honest election campaigns should be in the

interest and to the benefit of all parties taking part in electoral

jousting. The entire election process, i.e. an election campaign and the

elections themselves, can be considered the foundation of democratic

organization of society. Elections are not only the method whereby

candidates receive their mandates, i.e. the relevant position in the

hierarchy of elected bodies, but is also a process in which a number of

fundamental rights and freedoms are implemented. The protection of this

process can not be abandoned by tolerating dishonorable and dishonest

conduct, or relativizing it, because that depends citizens’ disgust with

politics and is dangerous for democracy.

 

In

this regard, I consider it superfluous to examine in detail the causal

connection between violation of honorable and honest conduct of an

election campaign and the results of elections. I rely on the text of §

87 par. 2, 4 of the Election Act, where a subject named in the second

paragraph has active standing to file a petition to declare elections

invalid if he believes that provisions of the Act were violated in a

manner which could influence the results of elections. In my opinion, in

this particular case the appeal could be granted only on the assumption

that the cited violations of the Election Act could not influence the

results of the elections under any circumstances.

 

It

is true that the result of the elections in this case was the election

of a senator, but Senate elections have two rounds. If the difference in

the first round between the second candidate to advance to the second

round and the third candidate, who did not advance, where a negative

election campaign was led against him, was a mere 325 votes, one can

consider that the negative election campaign led against the

non-advancing candidate may have influenced the results for advancing to

the second round. The candidate who did not advance lost the chance to

fight in the second round of Senate elections, which decides between

only the two advancing candidates. Voter participation, their behavior,

preferences, and tactics, are substantially different than in the first

round. Arguments based on statistical data or pre-election polls are

speculative to a certain degree, and only completes the de facto

abandonment of protecting the honor and honesty of an election campaign

in the abovementioned sense.

 

For

all the foregoing reasons I am of the opinion that the petitioner’s

appeal, decided by the Constitutional Court in proceedings under § 85 of

Act no. 182/1993 Coll., should have been denied.

 

 

 

Brno, 26 January 2005

 

 

 

 

 

 

 

 

 

Dissenting Opinion of Justice JUDr. Miloslav Výborný

 

 

 

In

the adjudicated case the Constitutional Court determined beyond all

doubt that the election campaign preceding elections to the Senate of

the Parliament of the CR in election district no. 19 in Prague 11 was

conducted in a completely unacceptable manner.

 

The

municipal publications which were presented in evidence did not

maintain correctness and neutrality; the campaigning against one of the

candidate quite exceeded even minimal standards of decency. Even in an

election campaign, not everything can be permitted; I deeply disagree

with the thesis expressed in the reasoning of the judgment that these

concepts (that is, honorable and honest conduct of an election campaign)

can not be interpreted in terms of general morality, because they are

being applied in the context of an election campaign, which is nothing

more than a fight for voters’ votes; quite the contrary – these concepts

can only be measured according to general morality, because, in my

judgment, we can not accept that in addition to general morality there

is an additional, pre-election morality, apparently a more benevolent

one. The fight for voters’ votes also has and must have its rules; those

rules are set at both constitutional and statutory levels. Even if the

Election Act did not contain § 16 par. 2 on the mandatory honesty and

honor of an election campaign, that would change nothing about the fact

that a dishonest and dishonorable campaign (of course if of a serious

intensity) would as a consequence breach the freedom and objectivity of

elections.

 

It

is also important what media - financed by whom -an election campaign

is conducted. I fully agree with the majority opinion’s conclusions

that, in terms Article 5 of the Constitution and Art. 22 of the Charter

there is no dispute about the observance of equal access for political

parties to media which are published by a public law corporation, that

the rule of equal “access” must be applied here because a different

approach would be inconsistent with the rules of free competition among

political parties under Art. 5 of the Constitution and free competition

of political forces under Art. 22 of the Charter, and that these

publications, if they give access to political parties, are subject to

the principle of equal opportunity which flows from the principle of

free competition among political parties and political forces, and that a

different approach could indicate to voters that the municipality, as a

public law corporation, prefers only certain political parties.

 

In

the adjudicated matter the Constitutional Court reliably determined

that an election campaign was conducted in media published by the

Municipal Office of Prague 10-Uhříněves, City District Prague-Petrovice

and City District Prague-Křeslice, and that equal access for parties or

candidates running for election to the Senate did not exist. If the

majority therefore concludes in the reasoning of the judgment that this

violated the principle enshrined in Art. 5 of the Constitution and Art.

22 of the Charter (with which I have no reason to argue),that

determination itself is sufficient to conclude that the election

campaign was conducted not only unlawfully (i.e. dishonorably and

dishonestly, which the majority opinion also, in agreement with my

opinion, emphasizes), but also unconstitutionally. The only logical

consequence should have been denial of the appeal.

 

If

the majority legal opinion argues on the grounds of the absence of even

potential causality between the content of the cited publications and

the election of J. N., then in my opinion it would be possible to also

argue the contrary. Deliberations regarding the extent to which, in a

particular case, violation of the Election Act can influence the results

of elections can always only be estimates. The majority opinion uses

the scale of the so-called sufficiently large degree of probability, and

relies on statistical data, which allegedly do not give rise to any

logically or statistically documentable conclusion that, upon

application of the principle of an absolute majority, there was a great

degree of probability that anything would have changed in the results of

the second round of elections and that J. N. would not have been

elected senator. In my opinion one can reason this way only with certain

reservations, because pre-election polls provide a more or less

qualified estimate of the results of future elections, and they can not

be used to evaluate missteps in an election campaign; post-election

statistical data are the results of a possible “darkening” of the

election result as a consequence of the cited unlawful and

unconstitutional conduct of an election campaign.

 

 

 

Brno, 26 January 2005

 

 

 

 

 

 

 

 

 

Dissenting Opinion of JUDr. Ivana Janů

 

 

 

I

criticize the majority opinion of the Plenum of the Constitutional

Court primarily because, although in its substantive evaluation it

reached the correct factual evaluation in many regards, it did not, in

my opinion, draw the correct legal conclusions from that.

 

 

 

The substantive determinations are as follows:

 

1.

The fundamental role of proceedings on an appeal against a decision on

verifying the election of a deputy or senator is to guarantee the proper

conduct of elections.

 

The

Constitutional Court is ruling on an appeal against a decision by the

Supreme Administrative Court and the Senate, but that does not mean that

it is bound only by the bounds of § 87 par. 3 to 5 of the Election Act.

In the position of a final appeal court in the election judiciary it

still remains a judicial body for protection of constitutionality, and

the fundamental measure for its decision making are the principles

contained in the constitutional order and in the Act on the

Constitutional Court. Our election judiciary does not recognize an

absolute defect in election proceedings, that is, such violation of an

election regulation which would result in automatic annulment of

elections. In this regard all potential defects and doubts must be

considered relative, and their significance must be measured by their

effect on the result of elections, according to the principle of

proportionality.

 

This

process is based on the constitutional principle of protection of

decisions emerging from the will of the majority manifested in free

voting and taking into considerations the rights of minorities (Art. 6

of the Constitution).

 

 

 

2.

An election campaign is one of the aspects of evaluation of properly

conducted free and democratic elections. If the law does not forbid the

use of municipal periodicals in an election campaign, then they can be

used for an election campaign only if equal access for the political

parties is preserved.

 

The obligation to guarantee equal access arises from Art. 21 par. 3 of the Charter.

 

In

this case the issue was not whether Ing. Zápotocký had access to these

media, but whether publication of the materials in question violated the

rules of an election campaign, as provided by § 16 par. 2 of the

Election Act.

 

 

 

3.

There is no doubt that the media which are at the disposal of local

self-governing units must apply the rule of equal “access.”

 

A

different approach would be inconsistent with the rules of free

competition among political parties under Art. 5 of the Constitution and

free competition among political forces under Art. 22 of the Charter.

The use of municipal media must be measured for purposes of election

campaigning by equal opportunity, and the publisher or operator of such

media must weight it is able to guarantee that this principle will be

observed. A different approach could suggest to voters that the

municipality, as a public corporation, prefers only certain political

parties.

 

There

is no dispute that the printed materials published as municipal

reporters, because they are in the hands of the public authorities, must

remain correct and neutral. In the position of a mayor, a candidate

must observe certain rules, because in that position he is a public

official, and thus does not have the general freedom of expression as

ordinary citizens. In short, he can not use his position as mayor to

benefit his election campaign, or someone else’s campaign. The submitted

materials indicate that the campaigning by the mayors against Ing. A.

Z., whether direct or indirect, was not consistent with the requirements

of honest and honorable conduct of an election campaign (especially the

misuse of an anonymous letter), as can be concluded from § 16 par. 2 of

the Election Act.

 

I

agree with these selected theses of the opinion of the Plenum of the

Constitutional Court; on the basis of these, and in the context of the

full presentation of evidence before the Constitutional Court, I reach

the following different conclusions:

 

  

I.

 

The Election Act, § 16 par. 2, provides:

 

An

election campaign must be conducted honorably and honestly, in

particular, untrue information may not be published about candidates and

the political parties or coalitions on whose candidate lists they are

listed.

 

In

this case it is evident that the relevant issues of the Uhříněves

Reporter and the Petrovice Reporter contain a strikingly negative

campaign aimed at damaging and discrediting one of the candidates in

Senate elections. In both cases this campaign involves representatives

of state power, mayor J. C., who deals with a three year old anonymous

letter (published in the same reporter) as if it were a relevant, signed

and correct information. In the second case, a member of the council of

City District Petrovice, Ing. P. Ř., conducts an interview with JUDr.

M. Č., and the reader learns, to his surprise, what the true face of one

of the Senate candidates is. Both cases involve a municipal publication

financed from municipal funds, published directly before the elections,

and one of them even with a higher print run.

 

In

my opinion the question “who started” this campaign (which the Plenum’s

majority opinion asks) is not relevant and does not excuse anything. If

the principles of honor and honesty of an election campaign were really

violated by all the entities involved, that would not produce some

hypothetical balanced situation, but the effects of such unlawfulness

would be much more intensive, and the election result would be even more

deformed. In other words, the effects of unlawful conduct of an

election campaign by the competing candidates on the deformation of

election results are not “reduced,” do not fail to “disturb,” but are

“added.” A dishonorably and dishonestly conducted election campaign in

addition to causing the desired shift of election preferences, may have

considerable influence on voter participation, an important factor which

affects the outcomes of elections.

 

 

 

II.

 

Another

point where I disagree with the Plenum’s majority opinion is its

concept of honor and honesty in an election campaign, which is expressed

in the Plenum’s majority opinion as follows: “These concepts can not be

interpreted in terms of private law and general morality, because they

are being applied in the context of an election campaign, which is

nothing more than a fight for voters’ votes.”

 

I

consider this blessing of dual morality by the Constitutional Court to

be unfortunate. In my opinion, decency and honesty are the basis of

morality, which is the same in all areas of life. We learn it in the

family, we should improve in it in school, and as adults we transfer it

to public life. Morality anchors the law in society, and in the interest

of protecting morality, if other conditions are met, many of an

individual’s fundamental rights may be restricted. I grant that it is

difficult to define both terms positively, but virtually everyone knows

what is impolite and dishonest in a certain situation, both in the

private sphere and in public life.

 

 

 

III.

 

The

last point where I dissent is the evaluation of fulfillment of the

elements in § 87 par. 4 of the Election Act. The provision of § 87 par. 4

states: A petition to declare elections invalid may be filed by a

petitioner if he believes that provisions of this Act were violated in a

manner which could influence the results of elections. It is evident

that the legislature does not consider a violation of elections other

than one which could influence the results of elections to be capable of

causing elections to be invalid. Thus, under this provision, a

necessary condition for elections to be invalid, is violation of a

provision of the Election Act and simultaneously the fact that such

violation of the Election Act could influence the results of elections.

The Act speaks of the possibility of influencing election results, not

the situation that election results were demonstrably influenced. Thus,

even the mere possibility that results could be influenced based on a

specific violation of the Act is grounds to declare elections invalid

under § 87 par. 4 and § 88 par. 2 of the Election Act. The principle of

proportionality does not permit discussion of a purely theoretical

possibility, but of capacity to influence election results on the basis

of a specific violation of the Election Act and related circumstances. A

court decision will always be based on the specific circumstance sin a

given matter, and it must examine both violation of the Election Act (in

this case the provisions concerning election campaigns), and whether it

is possible for such violation of the Act to cause election results to

be different than if the violation of the Act had not occurred (that is,

whether J. N. would have won the elections). Thus, I believe that if

election results could have been influenced by the specific violation of

the Election Act, it is not realistic, in my opinion, to draw

conclusions as to what the results of the second round of elections

would have been, had J. N. competed in it with a different candidate,

who did not advance to the second round by a small difference in votes,

which could have been caused by an unfair election campaign against him.

The Act does not impose such an obligation on the election court. In

this regard the formulation of the Act is logical, because in the case

of elections it is not always possible to conclude what led to election

results and what the considerations were that led voters to give their

votes to a particular candidate, and what did or did not influence them.

Such information is non-verifiable, and so merely speculative.

 

The

foregoing applies all the more so because Senate elections are

conducted in a two-round majority elections system. In the first round

each voter can cast his vote for the candidate he prefers. Only the two

most successful candidates advance to the second round. In the second

round, a no longer negligible number of voters decide between two

candidates whom they did not vote for in the first round, or perhaps do

not take part in the second round at all. In Senate elections, based on

election results until now, it is not an unusual event that the victor

in the 1st round is then defeated by the second candidate, who is more

acceptable to voters, a better compromise, or less unacceptable. (A

similar general conclusion from experience with the two-round majority

system in other countries is provided by Sartori G.: Srovnávací ústavní

inženýrství [Comparative Constitutional Engineering], SLON Publishers,

Prague 2001, p. 75 et seq.). In the present matter, this effect is

evidenced by the considerable increase in support for the candidate J.

J. in the second round, compared to the first round where J. N. won by a

much more distinctive margin. For these reasons, one simply can not

predict the results of the 2nd round by reference to the long-term

distribution of support for political parties by the electorate.

Likewise, one can not argue by using statistics and pre-election polls

conducted before the 1st round of elections. The two-round majority

system of Senate elections is aimed at the personality of a candidate in

an incomparably higher degree than the system of proportional

representation, which is aimed at political parties and their programs.

 

Insofar

as the majority opinion states that “the judicial branch can change the

decision of the voters, as a sovereign, only in exceptional cases,

where defects in the election process caused or could demonstrable cause

that the voters would have decided differently and a different

candidate would have been elected,” I believe that the adjudicated

matter is precisely such a case of violation of the Election Act which

could influence election results. For these reasons, in my opinion, the

elections in election district no. 19 Prague 11 must be considered

invalid (as the Supreme Administrative Court declared them). Logically,

invalid elections can not produce a validly elected candidate.

 

 

 

IV.

 

From

a comparative viewpoint, my opinion is supported by conclusions in

decisions by German courts concerning election matters. For example, the

decision of the State Court in Bremen of 7 October 1979 [BremStGHE 4,

111], which declared the obligation of the state (the public power) to

maintain neutrality in elections. The German Federal Constitutional

Court addressed the issue of conduct inconsistent with good morals in

its decision of 8 February 2001 [BverfGe 103, 111], which confirms the

competence of an election court to declare elections invalid if it finds

that there has been violation of the rules of an election campaign. The

same approach is presented in the well-known decision of the

Constitutional Court in Hamburg, no. 3/93 of 3 May 1993.

 

 

 

V.

 

In

conclusion, I must emphasize that the fundamental role of the

Constitutional Court is to protect democracy. Elections are a process in

which democracy is renewed at regular intervals. They are a process

where the people (the electorate), as the sovereign, as the constitutive

power, gets to speak, in order to create a new governing majority (the

constituted power) or change the existing majority, or re-confirm (give a

new mandate to) the existing public power. The principle that the rule

of the majority takes into consideration protection of the rights of

minorities (Art. 6 of the Constitution), expresses the situation that

exists during times of elections, where a minority must have a realistic

opportunity to become a majority, it the sovereign – the people – so

decides. The principle of strict neutrality of the governing public

power is therefore a fundamental requirement on free democratic

elections, on which a law-based state is founded.

 

For

all the foregoing reasons I maintain the opinion that the petitioner’s

appeal, on which the Constitutional Court decided in proceedings under §

85 of Act no. 182/1993 Coll., on the Constitutional Court, as amended

by later regulations, should have been denied.